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The Pronk Pops Show 977, October 4, 2017, Story 1: Mass Murderer Steve Paddock Was Prescribed A Very Addictive Anti-anxiety Drug Valium or Diazepam (Benzodiazepines) — Possible Adverse Effects of Benzodiazepines or Benzo Include Disinhibition and Aggressive Behavior — Benzos Are The Most Prescribed and Abused Drug in United States — Videos — Story 2: The Mass Murderer’s Former Girlfriend, Marilou Danley Is Now “A Person of Interest” — Flies Back To United States From Phillipines and Met By FBI To Answer Questions — Fully Cooperating With FBI — Knew Nothing of Friend’s Plans — The Criminal Investigation of Las Vegas Mass Murderer Killed 58 — 47 Fire Arms Recovered From Murder’s Hotel Room (23), Home (19), and Reno Home (7) — Videos — Story 3: Gun Grabbing Baby Killing Democrat Advocates vs. Pro Life and Pro Second Amendment Advocates — Real Aim of Gun Grabbers : Confiscate All Guns and Repeal Second Amendment — Gun and Ammunition Sales Booming — Make My Day  — Lying Lunatic Left Lies of Jimmy Kimmel — Videos

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The Pronk Pops Show Podcasts

Pronk Pops Show 977, October 4, 2017

Pronk Pops Show 976, October 2, 2017

Pronk Pops Show 975, September 29, 2017

Pronk Pops Show 974, September 28, 2017

Pronk Pops Show 973, September 27, 2017

Pronk Pops Show 972, September 26, 2017

Pronk Pops Show 971, September 25, 2017

Pronk Pops Show 970, September 22, 2017

Pronk Pops Show 969, September 21, 2017

Pronk Pops Show 968, September 20, 2017

Pronk Pops Show 967, September 19, 2017

Pronk Pops Show 966, September 18, 2017

Pronk Pops Show 965, September 15, 2017

Pronk Pops Show 964, September 14, 2017

Pronk Pops Show 963, September 13, 2017

Pronk Pops Show 962, September 12, 2017

Pronk Pops Show 961, September 11, 2017

Pronk Pops Show 960, September 8, 2017

Pronk Pops Show 959, September 7, 2017

Pronk Pops Show 958, September 6, 2017

Pronk Pops Show 957, September 5, 2017

Pronk Pops Show 956, August 31, 2017

Pronk Pops Show 955, August 30, 2017

Pronk Pops Show 954, August 29, 2017

Pronk Pops Show 953, August 28, 2017

Pronk Pops Show 952, August 25, 2017

Pronk Pops Show 951, August 24, 2017

Pronk Pops Show 950, August 23, 2017

Pronk Pops Show 949, August 22, 2017

Pronk Pops Show 948, August 21, 2017

Pronk Pops Show 947, August 16, 2017

Pronk Pops Show 946, August 15, 2017

Pronk Pops Show 945, August 14, 2017

Pronk Pops Show 944, August 10, 2017

Pronk Pops Show 943, August 9, 2017

Pronk Pops Show 942, August 8, 2017

Pronk Pops Show 941, August 7, 2017

Pronk Pops Show 940, August 3, 2017

Pronk Pops Show 939, August 2, 2017

Pronk Pops Show 938, August 1, 2017

Pronk Pops Show 937, July 31, 2017

Pronk Pops Show 936, July 27, 2017

Pronk Pops Show 935, July 26, 2017

Pronk Pops Show 934, July 25, 2017

Pronk Pops Show 934, July 25, 2017

Pronk Pops Show 933, July 24, 2017

Pronk Pops Show 932, July 20, 2017

Pronk Pops Show 931, July 19, 2017

Pronk Pops Show 930, July 18, 2017

Pronk Pops Show 929, July 17, 2017

Pronk Pops Show 928, July 13, 2017

Pronk Pops Show 927, July 12, 2017

Pronk Pops Show 926, July 11, 2017

Pronk Pops Show 925, July 10, 2017

Pronk Pops Show 924, July 6, 2017

Pronk Pops Show 923, July 5, 2017

Pronk Pops Show 922, July 3, 2017

 

Image result for second amendment and gun control

Image result for list of psychotropic drugs

Story 1: Mass Murderer Steve Paddock Was Prescribed A Very Addictive Anti-anxiety Drug Valium or Diazepam (Benzodiazepines) — Possible Adverse Effects of Benzodiazepines or Benzos Include Disinhibition and Aggressive Behavior — Benzos Are The Most Prescribed and Abused Drug in United States — Videos —

Image result for drug valium diazepam

Psychiatric Drug Links to Violent Behavior

Psychiatric Drugs Homicide and Suicide The Connection

Vegas shooter was reportedly prescribed anti-anxiety meds

LAS VEGAS SHOOTER WAS ON VALIUM – HERE’S WHY IT MATTERS

Valium (Diazepam) Review and Side Effects

What Are The Side Effects Of Valium? | Learn The Dangerous Valium Side Effects Now!

Top 10 Most Abused Prescription Drugs

00:57 #10: Dilaudid [aka Hydromorphone]

01:56 #9: Soma [aka Carisoprodol]

02:45 #8: Ambien [aka Zolpidem]

03:48 #7: Valium [aka Diazepam]

04:52 #6:  Fentanyl

05:53 #5: Xanax [aka Alprazolam]

07:05 #4: Adderall

08:28 #3:Codine

09:26 #2: Vicodine

10:50 #1: OxyCotin [OxyCodone]

‘As Prescribed’ – Trailer for Benzodiazepine Withdrawal Documentary

The Many Faces of Benzo (Ativan Klonopin Xanax Valium) Withdrawal

What are Benzodiazepines? Benzo Facts and Effects

Facts You Should Know About Benzodiazepine Abuse

Psychiatric Drugs Are More Dangerous than You Ever Imagined

How I got myself off valium – Benzodiazepine

Valium withdrawal symptoms – benzodiazapines really are awefull to kick -Part 1 of 2)

Valium withdrawal symptoms – benzodiazapines really are awefull to kick – Part 2 of 2)

GABA Neurotransmitters, Anxiety, and the Dangers of Benzodiazepines

Dr. Von Stieff explains the dangers of what benzodiazepines do and how these GABA drugs, like Xanax and diazepam, can lead to prescription addiction and even cause alcoholics to relapse. Learn how benzodiazepine effects on GABA neurotransmitters can actually incite anxiety.

Alcohol Effects and Neurotransmitters: The GABA and Glutamate Balance

GABA Neurotransmitters and Glutamate

Relapse Prevention: Overcome Fear and Anxiety Attacks and Prevent Panic Attacks

MY BENZO EXPERIENCE: What it Feels Like to Take a Benzodiazepine for Anxiety

Some days I wake up with nearly crippling anxiety for no apparent reason. This was one of those days unfortunately and after suffering through my physical symptoms for many hours like I often do, I decided to take 1 mg of Ativan (Benzodiazepine) and film my experience on it and how it affected my anxiety.

The Untold Story of Psychotropic Drugging – Making a Killing – Full Documentary

SSRI Drugs are Dangerous!

Selective Serotonin Reuptake Inhibitors

Prescription for Mayhem: SSRI’s and The War on Drugs

#LasVegasShooting Live Stream Update: Dissecting the Preposterous, the Possible and the Probable

Psych Meds and Big Pharma and the Link to Shootings

19. Aggression III

May 14, 2010) Robert Sapolsky continues his neurobiological exploration of human aggression. He discusses correlations between neurotransmitter prevalence and aggression levels, aggressive activity differences from genetic variance, societal factors and application, amplification from alcohol, and crime and punishment.

20. Aggression IV

“Behave” by Robert Sapolsky, PhD

By Kyle Feldscher |   

Las Vegas killer Stephen Paddock was prescribed the anti-anxiety drug Valium in June, a drug that has aggressive behavior as a possible side effect.

The Las Vegas Review-Journal reported Paddock was prescribed the medication in June. He was supposed to take one pill per day and fulfilled the prescription on the same day it was written.

“If somebody has an underlying aggression problem and you sedate them with that drug, they can become aggressive,” said Dr. Mel Pohl, chief medical officer of the Las Vegas Recovery Center, told the newspaper. “It can disinhibit an underlying emotional state. … It is much like what happens when you give alcohol to some people … they become aggressive instead of going to sleep.”

Paddock killed 59 people and injured more than 500 others when he opened fire with high-powered rifles from the 32nd floor of the Mandalay Bay Resort and Hotel late Sunday night. He shot into a country music festival taking place on the street below.

Officials continue to investigate the incident, the largest mass shooting in American history.

Questions remain over whey Paddock wired $100,000 to the Philippines just before the shooting. The island nation is the home country of his girlfriend, who was out of the country at the time of the shooting.

He also reportedly gambled with more than $10,000 during the day before the shooting.

http://www.washingtonexaminer.com/las-vegas-shooter-stephen-paddock-was-prescribed-anti-anxiety-drug-months-before-killing/article/2636485

 

Stephen Paddock was prescribed anti-anxiety medication Valium which can trigger aggressive behavior four months before Las Vegas massacre

  • Stephen Paddock was prescribed anti-anxiety medication in June, records show
  • He was taking tablets of diazepam – or Valium – which can trigger aggression
  • It is not known why he was prescribed the drug or whether he had anger issues
  • Former neighbors said Paddock was a reclusive weirdo, while coffee shop workers said he was often rude to girlfriend Marliou Danley 
Stephen Paddock, the man behind America's worst ever mass shooting, was prescribed Valium months before the massacre

Stephen Paddock, the man behind America’s worst ever mass shooting, was prescribed Valium months before the massacre

Las Vegas killer Stephen Paddock was prescribed an anti-anxiety medication four months before shooting 58 people dead and wounding more than 500.

Paddock was prescribed 50 10 milligram diazepam tablets – also known as Valium – on June 21 by Vegas doctor Steven Winkler, the Las Vegas Review-Journal reports.

Diazepam is a sedative-hypnotic drug that can trigger aggressive behavior in people with underlying behavioral problems, multiple studies have shown.

It is not known why Paddock was prescribed the drug, or whether he had any behavioral issues.

Multiple people who knew him, including his own brother Eric, say he displayed no outward signs of aggression and did not appear as the kind of person who would carry out a mass shooting.

Staff at Dr Winkler’s office would not confirm to the Review-Journal if Paddock had been a patient, and said the doctor would not be answering questions.

One study conducted in Finland, and another in Australia and New Zealand, linked the use of benzodiazepines – the class of drugs to which diazepam belongs – to increased instances of aggressive behavior.

On Sunday Paddock used a vantage point from the 32nd floor of the Mandalay Bay hotel to slaughter 58 people and wound more than 500 using high-powered rifles

On Sunday Paddock used a vantage point from the 32nd floor of the Mandalay Bay hotel to slaughter 58 people and wound more than 500 using high-powered rifles
Paddock’s medical history was revealed as more information emerged about America’s worst-ever mass shooter.

On Tuesday investigators said he wired $100,000 to the Philippines before carrying out his massacre, the same country that girlfriend Marilou Danley was visiting at the time of the killings and where she is believed to have been born.

FBI agents met Danley as she arrived back in the US from Manila on Tuesday and said she is a ‘person of interest’ in their investigation. 

Investigators have not revealed where or to whom the $100,000 was sent.

The news emerged after actress and Scientologist Kirstie Alley put out a series of tweets claiming a common denominator in mass killings – aside from guns – are psychiatric drugs.

‘We have to solve the mystery of why there were no ‘shooters’ or almost 0 before the 1980’s. I know one common denominator other than guns,’ Alley tweeted Monday.

‘One additional common denominator of ‘shooters’ is USA’s mass usage of psychiatric drugs. A % do have side effects of VIOLENCE & SUICIDE,’ continued the outspoken actress.

Elsewhere workers at a Starbucks in the town of Mesquite, where the couple lived, shed some light on their relationship – saying that Paddock was always rude to Danley whenever the pair came to the shop.

SIDE EFFECTS OF DIAZEPAM (VALIUM)

For most patients, these are the typical side effects:

  • drowsiness
  • tired feeling
  • dizziness
  • spinning sensation
  • fatigue
  • constipation
  • loss of balance
  • memory problems
  • restlessness
  • irritability
  • muscle weakness
  • nausea
  • drooling
  • dry mouth
  • slurred speech
  • blurred vision
  • double vision
  • skin rash
  • itching
  • lost interest in sex

However, the pamphlet that accompanies the medication tells patients to call their doctor if they experience the following symptoms:

  • thoughts about suicide or dying
  • new or worse anxiety
  • trouble sleeping (insomnia)
  • acting on dangerous impulses
  • attempts to commit suicide
  • feeling agitated or restless
  • new or worse irritability
  • an extreme increase in activity and talking (mania)
  • new or worse depression
  • panic attacks
  • acting aggressive, being angry, or violent
  • other unusual changes in behavior or mood

Mendoza said the abuse came when Danley would ask to use his casino card to purchase their drinks.

‘He would glare down at her and say, “You don’t need my casino card for this. I’m paying for your drink, just like I’m paying for you,'” Mendoza recalled.

She told the Los Angeles Times that Danley would then cower behind him and softly say, ‘OK’.

Meanwhile a former neighbor of Paddock’s from his time living in Reno described him as a reclusive ‘weirdo’ who barely spoke to anyone else on the street.

‘He would keep his face down, avoid all conversation and was just very unfriendly and strange,’ Susan Page told The Sun.

Paddock opened fire on the Route 91 Harvest Festival from a suite on the 32nd floor of the Mandalay Bay hotel on Sunday night with multiple rifles, some of which had been modified to effectively fire on full-automatic mode.

During an estimated 72 minute shooting spree he killed 58 people and wounded 527 in America’s worst ever mass shooting.

Paddock then took his own life as police breached the door of his hotel room.

Officers say they found 23 guns inside the room, most of them rifles, along with thousands of rounds of ammunition.

At Paddock’s home in nearby Mesquite they found another 19 weapons, along with explosive tannerite and fertilizer which can be used to make bombs.

Investigators have been unable to determine a motive for the attack, and the FBI says there is no evidence linking Paddock to any foreign terror organization despite ISIS claiming responsibility.

http://www.dailymail.co.uk/news/article-4947276/Stephen-Paddock-prescribed-Valium-Vegas-massacre.html#ixzz4uatJjYxV

 

 

Drug- Induced Behavioural Disinhibition

Incidence, Mechanisms and Therapeutic Implications

Adverse Effects

Summary

Behavioural disinhibition implies the loss of restraint over some form of social behaviour. Such disinhibition can be drug induced and, on rare occasions, lead to extreme acts of aggression or violence. Examples of behavioural disinhibition are often considered paradoxical and rare reactions to drugs, but they may in fact be a more severe behavioural manifestation of a general effect that the drug has on emotions and behaviour. However, the incidence of drug-induced behavioural disinhibition varies considerably and cannot be estimated accurately, as accounts stem mainly from case reports rather than from controlled clinical trials. Adverse effects of drugs are rarely, if ever, the sole focus of clinical studies, although they are now monitored more rigorously in controlled trials.

There are numerous anecdotal case reports in the literature of behavioural disinhibition occurring during administration of benzodiazepines, and recent controlled trials have addressed this issue. The incidence varies with the population studied, but tends to be higher in patients with pre-existing poor impulse control. Alcohol (ethanol) potentiates the disinhibiting effect of benzodiazepines. Aberrant forms of disinhibited behaviour may be accompanied by memory loss.

Disinhibition has also been reported after treatment with tricyclic antidepressants, and reports are now appearing that describe disinhibition in patients who have been treated with selective serotonin (5-hydroxytryptamine; 5-HT) reuptake inhibitors. These include incidents of akathisia, suicidal urges, agitation, hyperactivity and mania. They are more prevalent in children and those with learning disabilities.

Disinhibition is rare with antipsychotics and non-benzodiazepine anticonvulsants but some isolated case reports contain descriptions of such reactions with newer compounds.

The most important drug variable in drug-induced behavioural disinhibition is dosage, although mode of administration is also important. Discontinuation of the drug is usually expected to resolve behavioural reactions, but in certain cases drug withdrawal may precipitate a reaction. In order to minimise drug-induced behavioural disinhibition, it is essential to always use the minimum dosage necessary, to increase the dosage gradually and to monitor the effects carefully. Multiple drug use should be avoided whenever possible.

https://link.springer.com/article/10.2165/00023210-199809010-00005

 

Disinhibitory reactions to benzodiazepines: A review

Journal of Oral and Maxillofacial Surgery

Volume 49, Issue 5, May 1991, Pages 519-523

Abstract

This article reviews some of the important aspects of benzodiazepineinduced disinhibitory reactions. Although reactions of this type are relatively rare, they may sometimes manifest themselves in aggressive behavior accompanied by suicidal or homicidal tendencies. It appears that these reactions occur more commonly in younger patients, although the elderly (above 65 years) may also be at risk. Many mechanisms have been postulated, but none truly explain how these reactions arise. The concept that central cholinergic mechanisms may play a role, however, remains attractive and stems primarily from physostigmine’s ability to successfully reverse this type of reaction. The potential role of the benzodiazepine antagonists, eg, flumazenil, in reversing disinhibitory reactions is also discussed. Apart from patients who previously exhibited poor impulse control, there are no reliable indicators for recognizing potential candidates for this type of reaction. To minimize the occurrence of disinhibitory reactions, some guidelines, which include the avoidance of certain drug combinations, the use of low doses of benzodiazepines, slow incremental intravenous administration, and good rapport with patients, are presented.

http://www.sciencedirect.com/science/article/pii/027823919190180T

 

Benzodiazepines

What are Benzodiazepines

Benzodiazepines are a class of agents that work on the central nervous system, acting selectively on gamma-aminobutyric acid-A (GABA-A) receptors in the brain. GABA is a neurotransmitter that inhibits or reduces the activity of nerve cells (neurons) within the brain. Benzodiazepines open GABA-activated chloride channels, and allow chloride ions to enter the neuron. This makes the neuron negatively charged and resistant to excitation.

All benzodiazepines work in a similar way but there are differences in the way individual benzodiazepines act on the different GABA-A receptor sub-types. In addition, some benzodiazepines are more potent than others or work for a longer length of time. Because of this, some work better than others in particular conditions. Benzodiazepines may be used in the treatment of anxiety, panic disorder, seizures, or sleep disorders. They may also be used as a muscle relaxant, during alcohol withdrawal, or before surgery to induce relaxation and amnesia (memory loss).

List of Benzodiazepines:

Filter by:
— all conditions —
Alcohol Withdrawal
Anxiety
Benzodiazepine Withdrawal
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Borderline Personality Disorder
Burning Mouth Syndrome
Cervical Dystonia
Chronic Myofascial Pain
Cluster-Tic Syndrome
Depression
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Endoscopy or Radiology Premedication
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Lennox-Gastaut Syndrome
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Nausea/Vomiting, Chemotherapy Induced
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Story 2: The Mass Murderer’s Former Girlfriend, Marilou Danley Is Now “A Person of Interest” — Flies Back To United States From Phillipines and Met By FBI To Answer Questions — Fully Cooperating With FBI — Knew Nothing of Friend’s Plans — The Criminal Investigation of Las Vegas Mass Murderer Killed 58 — 47 Fire Arms Recovered From Murder’s Hotel Room (23), Home (19), and Reno Home (7) — Videos —

 

Image result for person of interest marilou danley

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BREAKING NEWS TONIGHT 10/3/17 | LAS VEGAS INCIDENT PUTS FOCUS ON GUN CONTROL DEBATE

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Las Vegas Strip shooter prescribed anti-anxiety drug in June

Las Vegas massacre probe turns to gunman’s girlfriend in Philippines

by Reuters
Wednesday, 4 October 2017 02:36 GMT

ABOUT OUR HUMANITARIAN COVERAGE

From major disaster, conflicts and under-reported stories, we shine a light on the world’s humanitarian hotspots

(Recasts with latest law enforcement news conference, officials say death toll confirmed at 58 plus the gunman, 12 weapons found in hotel suite equipped with ‘bumper stocks’, 47 guns recovered altogether, purchased in four states, crime scene photos are authentic, paragraphs 1, 11-12, 15, 17)

* Live-in companion sought for questioning

* Wire transfer of $100,000 under examination

* Trump calls gunman ‘a sick, demented man’

* Killer amassed dozens of weapons, explosives, ammunition

* Massacre stirs gun control debate

By Sharon Bernstein and Alexandria Sage

LAS VEGAS, Oct 3 (Reuters) – The investigation into the motives of a Las Vegas retiree who killed 58 people in the worst mass shooting in modern U.S. history turned on Tuesday to the gunman’s girlfriend in the Philippines, where she turned up after the massacre, authorities said.

Stephen Paddock, who killed himself moments before police stormed the hotel suite he had transformed into a sniper’s nest on Sunday night, left no clear clues as to why he staged his attack on an outdoor concert below the high-rise building.

But law enforcement authorities were hoping to obtain some answers from a woman identified as Paddock’s live-in companion, Marilou Danley, who Clark County Sheriff Joseph Lombardo said was a “person of interest” in the investigation.

Lombardo, who said on Monday Danley was believed to be in Tokyo, told reporters on Tuesday she had been located in the Philippines and the Federal Bureau of Investigation was in the process of trying to bring her back to the United States.

“We are in conversations with her,” he told an afternoon news briefing. He reiterated police had no other suspects in the shooting itself.

Danley, an Australian citizen reported to have been born in the Philippines, had been sharing Paddock’s condo at a retirement community in Mesquite, Nevada, about 90 miles (145 km) northeast of Las Vegas, according to police and public records.

Investigators were examining a $100,000 wire transfer Paddock, 64, sent to an account in the Philippines that “appears to have been intended” for Danley, a senior U.S. homeland security official told Reuters on Tuesday.

The official, who has been briefed regularly on the probe but spoke on condition of anonymity, said the working assumption of investigators was that the money was intended as a form of life insurance payment for Danley.

The official said U.S. authorities were eager to question Danley, who described herself on social media websites as a “casino professional,” mother and grandmother, about whether Paddock encouraged her to leave the United States before he went on his rampage.

The official said investigators had also uncovered evidence that Paddock may have rehearsed his plans at other venues before ultimately carrying out his attack on the Route 91 Harvest country music festival from the 32nd floor suite of the Mandalay Bay hotel on the Las Vegas Strip.

ARSENAL RECOVERED

Fresh details about the massacre and the arsenal Paddock amassed emerged on Tuesday.

Police said Paddock strafed the concert crowd with bullets for nine to 11 minutes before taking his own life, and had set up cameras inside and outside his hotel suite so he could see police as they closed in on his location.

A total of 47 firearms were recovered from three locations searched by investigators – Paddock’s hotel suite, his home in Mesquite, and another property associated with him in Reno, Nevada, according to Jill Snyder, special agent for the U.S. Bureau of Alcohol Tobacco and Firearms (ATF).

Snyder said 12 of the guns found in the hotel room were fitted with so-called bump-stock devices that allow the guns to be fired virtually as automatic weapons. The devices are legal under U.S. law, even though fully automatic weapons are for the most part banned.

The rifles, shotguns and pistols were purchased in four states – Nevada, Utah, California and Texas – Snyder told reporters at an evening news conference.

A search of Paddock’s car turned up a supply of ammonium nitrate, a fertilizer that can be formed into explosives and was used in the 1995 Oklahoma City bombing of a federal office building that killed 168 people, Lombardo said earlier.

Police also confirmed that photos widely published online showing the gunman’s body, his hands in gloves, lying on the floor beside two firearms and spent shell casings, were authentic crime-scene images obtained by media outlets. An internal investigation was under way to determine how they were leaked.

Video footage of the shooting spree on Sunday night caught by those on the ground showed throngs of people screaming in horror, some crouching in the open for cover, hemmed in by fellow concert-goers, and others running for cover as extended bursts of gunfire rained onto the crowd of some 20,000.

Police had put the death toll at 59 earlier on Tuesday, not including the gunman. However, the coroner’s office revised the confirmed tally to 58 dead, plus Paddock, on Tuesday night.

More than 500 people were injured, some trampled in the pandemonium. At least 20 of the survivors admitted to one of several hospitals in the area, University Medical Center, remained in critical condition on Tuesday, doctors said.

The union representing firefighters disclosed that a dozen off-duty firefighters who were attending the music festival were shot while trying to render aid to other spectators, two of them while performing cardiopulmonary resuscitation on victims.

“This is a true feat of heroism on their part,” said Ray Rahne of the International Association of Fire Fighters.

WHAT DROVE GUNMAN?

But the central, unanswered question to the bloodshed was what drove the gunman’s actions.

Federal, state and local investigators have found no evidence that Paddock had even incidental contacts with foreign or domestic extremist groups, and reviews of his history showed no underlying pattern of criminal behavior or hate speech, the homeland security official said.

While investigators had not ruled out the possibility of mental illness or some form of brain injury, “there’s no evidence of that, either,” the official said.

Paddock’s brother, Eric, has said he was mystified by the attack.

“It just makes less sense the more we use any kind of reason to figure it out,” Eric Paddock said in a text message on Tuesday. “I will bet any amount of money that they will not find any link to anything … he did this completely by himself.”

He said the family did not plan to hold a funeral for his brother, who was not religious, saying it could attract unwanted attention. He described his brother as a financially well-off enthusiast of video poker and cruises, with no history of mental health issues.

President Donald Trump told reporters on Tuesday that Paddock had been “a sick man, a demented man.”

GUN DEBATE STIRRED

The attack stirred the fractious debate about gun ownership in the United States, which is protected by the Second Amendment of the Constitution, and about how much that right should be subject to controls.

Sunday’s shooting followed the massacre of 26 young children and educators in Newtown, Connecticut, in 2012, and the slaying of 49 people at a gay nightclub in Orlando last year.

The latter attack was previously the deadliest mass shooting in modern U.S. history.

Democrats reiterated what is generally the party’s stance, that legislative action is needed to reduce mass shootings. Republicans, who control the White House and both chambers of Congress, argue restrictions on lawful gun ownership cannot deter criminal behavior.

“We’ll be talking about gun laws as time goes by,” said Trump, who strongly supported gun rights during his presidential campaign.

Paddock seemed unlike the troubled, angry young men who experts said have come to embody the mass-shooter profile in the United States.

Public records on Paddock point to an itinerant existence across the U.S. West and Southeast, including stints as an apartment manager and aerospace industry worker. He appeared to be settling in to a quiet life when he bought a home in a Nevada retirement community a few years ago.

(Additional reporting by Lisa Girion in Las Vegas, Jonathan Allen and Frank McGurty in New York, John Walcott, Susan Cornwell, Doina Chiacu and Jeff Mason in Washington, Bernie Woodall in Fort Lauderdale, Florida, Jon Herskovitz in Austin, Texas and Brendan O’Brien in Milwaukee; Writing by Steve Gorman and Scott Malone; Editing by Frances Kerry, Jonathan Oatis and Andrew Hay)

http://news.trust.org/item/20171003193434-ladhk

 

Las Vegas shooting suspect’s girlfriend is ‘person of interest’, says sheriff

  • Marilou Danley was in Philippines at time of shooting and remains there
  • Stephen Paddock placed cameras inside and outside his hotel room
The Clark County sheriff Joe Lombardo, flanked by Las Vegas’s Mayor Carolyn Goodman, left, and US representative Dina Titus, speaks during a news conference on Tuesday.
 The Clark County sheriff Joe Lombardo, flanked by Las Vegas’s Mayor Carolyn Goodman, left, and US representative Dina Titus, speaks during a news conference on Tuesday. Photograph: Ethan Miller/Getty Images

Las Vegas gunman Stephen Paddock’s girlfriend is “a person of interest” in the criminal investigation into America’s worst mass shooting, police said on Tuesday.

Sheriff Joseph Lombardo of Clark County said detectives are in contact with Marilou Danley, who was travelling in the Philippines at the time of the massacre and remains there. “The investigation with her is ongoing and we anticipate some further information from her shortly,” he told reporters. “Currently she is a person of interest.”

Lombardo declined to comment on an NBC news report that 64-year-old Paddock wired $100,000 to an account in the Philippines some time in the week before the attack.

Paddock opened fire from the windows of his room on the 32nd floor of the Mandalay Bay hotel, killing 59 people – all but three of whom have been identified – and injuring more than 500 at a country music festival. Police stormed his room and found he had killed himself.

Lombardo said the first report to police came at 10.08pm and Paddock continued to fire for nine minutes. The sheriff also told a press conference Paddock had set up cameras inside and outside his room, including one on a food service trolley. “I anticipate he was looking for anybody coming to take him into custody,” he said.

The evidence offers an insight into Paddock’s careful planning of the shooting. Lombardo said: “I’m pretty sure he evaluated everything that he did in his actions, which is troubling.”

Police have said they found 23 guns in Paddock’s room at the hotel. The sheriff added: “We are aware of a device called a bump stock that enables an individual to speed up the discharge of ammunition.” Bump stocks can be used to modify guns and make them fire as if they were fully automatic.

He also said authorities had completed their investigation at the gunman’s property in Reno, finding five handguns, two shotguns and a “plethora” of ammunition.

Paddock’s motive remains unknown. “This person may have radicalised, unbeknownst to us, and we want to identify that source.”

The sheriff said the number of people injured would go down slightly because of some double counting. “We also had very heroic acts of people attending the event … Citizens providing medical aid and transport for people to get to the hospital.”

Lombardo added: “It’s an ongoing investigation and when I say I don’t know, I may know … I assure you this investigation is not ended with the demise of Mr Paddock.”

https://www.theguardian.com/us-news/2017/oct/03/las-vegas-shooting-girlfriend-marilou-danley-person-of-interest-sheriff

 

Person of interest

From Wikipedia, the free encyclopedia

Person of interest” is a term used by U.S. law enforcement when identifying someone involved in a criminal investigation who has not been arrested or formally accused of a crime. It has no legal meaning, but refers to someone in whom the police are “interested,” either because the person is cooperating with the investigation, may have information that would assist the investigation, or possesses certain characteristics that merit further attention.

While terms such as suspecttarget, and material witness have clear and sometimes formal definitions, person of interest remains undefined by the U.S. Department of Justice.[1]Unsub is a similar term which is short for “unknown subject” (used often, for example, in the TV show Criminal Minds). Person of interest is sometimes used as a euphemism for suspect, and its careless use may encourage trials by media.

With respect to terrorism investigations, Eric Lichtblau wrote in the New York Times: “Law enforcement officials say that the term simply reflects the new tactics required to fight terrorism. But some legal scholars say officials are trying to create a more benign public image, even as their power expands.”[2]

History

According to Eric Lichtbau in the New York Times:

The term has an ugly history; in the 1960s American law enforcement officials began creating secret dossiers on Vietnam War protesters, civil rights leaders and other persons of interest…The vaguely sinister term has been applied to targets of terrorisminvestigations, the chief suspect in the murder of the Baylor basketball player Patrick Dennehy and Steven J. Hatfill, the scientist who has figured prominently in the investigation into the 2001 anthrax attacksAttorney GeneralJohn Ashcroft is often credited with popularizing the person-of-interest label, having used it [in 2002] to describe Dr. Hatfill.[2]

The term was used widely in mass media at least as early as the 1996 Atlanta Olympics bombing in reference to Richard A. Jewell. Its initial uses aroused controversy, but it has since seen increasingly regular use.[1] Jewell later remarked on the use of the term:

Question: Do you believe that the public will formulate the same idea about that person’s involvement in criminal activity upon hearing the term “person of interest”? Is this just a euphemism, just another way of saying “suspect”?

Jewell: I’d say so. The public knows what’s going on. Because of what happened to me, things have changed. It has definitely changed the way the media in Atlanta refer to people that are arrested or are suspects. And I’ve seen it on some of the national channels like Fox NewsNBC and CNN. They’ve all changed. Go back before 1996, at a shooting or a murder and see how they refer to the person whom they’re arresting in the incident. Compare that with something that’s recent and look at the difference. What happened to me is a factor in that change.[3]

Hatfill v. Ashcroft

The use of the term became widely critiqued when United States Attorney GeneralJohn Ashcroft used it in a press conference when asked if Dr. Steven J. Hatfill was a suspect in the 2001 anthrax attacks case. In 2002, Hatfill’s attorney filed a complaint with the Justice Department‘s Office of Professional Responsibility, arguing that “the term is not recognized in law or criminal procedure and that Ashcroft did not have the right ‘to preside over the public shredding of [Hatfill’s] life. This is un-American. Mr. Ashcroft owes Dr. Hatfill an apology.'”[4] Hatfill sued the Department of Justice for violation of federal privacy law; the case was settled in 2008 for $5.8 million.[5]

Definition

Normal Justice Department parlance for subjects of investigation includes “suspect,” “subject” and “target.” Each has specific meanings relevant to different levels of investigation. SenatorChuck GrassleyRepublican of Iowa, wrote to the Attorney General for clarification of the unfamiliar phrase in September 2002. In December of that year, Nuclear Threat Initiative‘s Global Security Newswire summarized the response as follows:[6]

… the U.S. Justice Department has said that it did not intend for Hatfill to come under such intense media scrutiny by describing him has a “person of interest” in the anthrax investigation, according to department letters sent to Senator Charles Grassley (R-Iowa), which were released yesterday. … The department did not intend to cause any harm to Hatfill when it described him as a person of interest, Assistant Attorney General Daniel Bryant said in one of the letters. Instead, the department meant “to deflect media scrutiny” and “explain that he (Hatfill) was just one of many scientists” who had cooperated with the FBI investigation, Bryant said.

Grassley said yesterday that he appreciates the department’s replies to his inquiries. “I also appreciate the department’s candidness that the action regarding Mr. Hatfill and his employment is unprecedented,” Grassley said in a statement, and that “there is no … formal definition for the term ‘person of interest.’

See also

References

Story 3: Gun Grabbing Baby Killing Democrat Advocates vs. Pro Life and Pro Second Amendment Advocates — Real Aim of Gun Grabbers : Confiscate All Guns and Repeal Second Amendment — Gun and Ammunition Sales Booming — Make My Day  — Lying Lunatic Left Lies of Jimmy Kimmel — Videos

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Image result for second amendment and gun control

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Image result for second amendment and gun control

Image result for second amendment and gun control

Hannity 10/4/17 | Fox News Today October 4, 2017

Tucker Carlson Tonight 10/4/17 – Tucker Carlson Fox News October 4, 2017 TRUMP, REX TILLERSON

Tucker Carlson; Blasts Hillary Clinton over Gun Control Tweet moments after attack..!

Tucker Carlson; Blasts Hillary Clinton over Gun Control Tweet moments after attack..!

LAS VEGAS SHOOTER WAS ON VALIUM – HERE’S WHY IT MATTERS

Las Vegas Massacre: John Lott discusses gun laws and ownership

John Lott: The War on Guns

John Lott: Why More Guns Equal Less Crime

John Lott, Jr.: Why gun bans don’t work

John Lott: Evidence proves owning a gun is the best way to protect your family

John Lott: More Guns, Less Crime

In a talk given on the very day a gunman was apprehended at the University of Austin, American senior research scientist at the University of Maryland and gun rights expert John Lott explains why guns bans only serve to increase gun crime rates, why the pilots should be armed, and how statistics prove that since the DC handgun ban was lifted, there has been a dramatic drop in the murder rate. Lott points to his research which proves that there isn’t a place in the world where a gun ban lowers gun crime, in fact stricter firearms regulation habitually leads to an increase in murder rates, because the only people who follow such regulations are law-abiding citizens who turn in their guns and thus leave themselves vulnerable to armed criminals who don’t obey the law. Speaking on the subject of pilots being armed, Lott points out that up until 1979, pilots were mandated to carry with them a loaded handgun and throughout decades of this policy there is not one example handguns causing a problem on an airliner, demolishing the innumerable “what if” hypothetical arguments of those who oppose arming the pilots, as well as the arguments against having concealed carry on college campuses. Lott details statistics that show since the Washington DC handgun ban was lifted, there has been a huge drop in murder rates, a fact that has received virtually no news coverage in the anti-second amendment establishment media. Crimes using guns since the ban was lifted fell by about three times as fast as other crimes not involving guns. Alternatively, since the Chicago gun ban in 1982, Lott documents how gun crime soared in both Chicago and surrounding areas.

Ben Shapiro Responds To Jimmy Kimmel

REBUTTAL: Everything Wrong With Jimmy Kimmel’s Las Vegas Rant | Louder With Crowder

Top 5 Gun Control Myths Debunked! | Louder With Crowder

HIDDEN CAM: “Gun Show Loophole” Exposed!

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Penn & Teller on Gun Control

Penn & Teller on the 2nd Amendment

REBUTTAL: Everything Wrong With Jimmy Kimmel’s Las Vegas Rant | Louder With Crowder

  • Second Amendment to the United States Constitution

    From Wikipedia, the free encyclopedia

    The Bill of Rights in the National Archives.

    Close up image of the Second Amendment

    The Second Amendment (Amendment II) to the United States Constitution protects the right of the people to keep and bear arms and was adopted on December 15, 1791, as part of the first ten amendments contained in the Bill of Rights.[1][2][3][4] The Supreme Court of the United States has ruled that the right belongs to individuals,[5][6] while also ruling that the right is not unlimited and does not prohibit all regulation of either firearms or similar devices.[7] State and local governments are limited to the same extent as the federal government from infringing this right per the incorporation of the Bill of Rights.

    The Second Amendment was based partially on the right to keep and bear arms in English common law and was influenced by the English Bill of Rights of 1689Sir William Blackstone described this right as an auxiliary right, supporting the natural rights of self-defense, resistance to oppression, and the civic duty to act in concert in defense of the state.[8]

    In United States v. Cruikshank (1876), the Supreme Court of the United States ruled that, “The right to bear arms is not granted by the Constitution; neither is it in any manner dependent upon that instrument for its existence” and limited the scope of the Second Amendment’s protections to the federal government.[9] In United States v. Miller (1939), the Supreme Court ruled that the Second Amendment did not protect weapon types not having a “reasonable relationship to the preservation or efficiency of a well regulated militia.”[10][11]

    In the twenty-first century, the amendment has been subjected to renewed academic inquiry and judicial interest.[11] In District of Columbia v. Heller (2008), the Supreme Court handed down a landmark decision that held the amendment protects an individual right to possess and carry firearms.[12][13] In McDonald v. Chicago (2010), the Court clarified its earlier decisions that limited the amendment’s impact to a restriction on the federal government, expressly holding that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment against state and local governments.[14] In Caetano v. Massachusetts (2016), the Supreme Court reiterated its earlier rulings that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding” and that its protection is not limited to “only those weapons useful in warfare”.[15]

    Despite these decisions, the debate between various organizations regarding gun control and gun rights continues.[16]

    Contents

     [show

    Text

    There are several versions of the text of the Second Amendment, each with capitalization or punctuation differences. Differences exist between the drafted and ratified copies, the signed copies on display, and various published transcriptions.[17][18][19][20][21][22][23][24] The importance (or lack thereof) of these differences has been the source of debate regarding the meaning and interpretation of the amendment, particularly regarding the importance of the prefatory clause.[25][26]

    One version was passed by the Congress, and a slightly different version was ratified.[27][28][29][30][31] As passed by the Congress and preserved in the National Archives, with the rest of the original hand-written copy of the Bill of Rights prepared by scribe William Lambert, the amendment says:[32]

    A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

    The hand-written copy of the proposed Bill of Rights, 1789, cropped to show only the text that would later be edited and ratified as the Second Amendment

    Here is the amendment as ratified by the States and authenticated by Thomas Jefferson, the Secretary of State:[33]

    A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    Pre-Constitution background

    Influence of the English Bill of Rights of 1689

    The right to bear arms in English history is believed to have been regarded in English law as an auxiliary to the long-established natural right of self-defense, auxiliary to the natural and legally defensible rights to life.[34] The English Bill of Rights of 1689 emerged from a tempestuous period in English politics during which two issues were major sources of conflict: the authority of the King to govern without the consent of Parliament and the role of Catholics in a country that was becoming ever more Protestant. Ultimately, the Catholic James II was overthrown in the Glorious Revolution, and his successors, the Protestants William III and Mary II, accepted the conditions that were codified in the Bill. One of the issues the Bill resolved was the authority of the King to disarm its subjects, after James II had attempted to disarm many Protestants, and had argued with Parliament over his desire to maintain a standing (or permanent) army.[35] The bill states that it is acting to restore “ancient rights” trampled upon by James II, though some have argued that the English Bill of Rights created a new right to have arms, which developed out of a duty to have arms.[36] In District of Columbia v. Heller (2008), the Supreme Court did not accept this view, remarking that the English right at the time of the passing of the English Bill of Rights was “clearly an individual right, having nothing whatsoever to do with service in the militia” and that it was a right not to be disarmed by the Crown and was not the granting of a new right to have arms.[37]

    The text of the English Bill of Rights of 1689 includes language protecting the right of Protestants against disarmament by the Crown. This document states: “That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.”[38] It also contained text that aspired to bind future Parliaments, though under English constitutional law no Parliament can bind any later Parliament.[39] Nevertheless, the English Bill of Rights remains an important constitutional document, more for enumerating the rights of Parliament over the monarchy than for its clause concerning a right to have arms.

    The statement in the English Bill of Rights concerning the right to bear arms is often quoted only in the passage where it is written as above and not in its full context. In its full context it is clear that the bill was asserting the right of Protestant citizens not to be disarmed by the King without the consent of Parliament and was merely restoring rights to Protestants that the previous King briefly and unlawfully had removed. In its full context it reads:

    Whereas the late King James the Second by the Assistance of diverse evill Councellors Judges and Ministers imployed by him did endeavour to subvert and extirpate the Protestant Religion and the Lawes and Liberties of this Kingdome (list of grievances including) … by causing severall good Subjects being Protestants to be disarmed at the same time when Papists were both Armed and Imployed contrary to Law, (Recital regarding the change of monarch) … thereupon the said Lords Spirituall and Temporall and Commons pursuant to their respective Letters and Elections being now assembled in a full and free Representative of this Nation takeing into their most serious Consideration the best meanes for attaining the Ends aforesaid Doe in the first place (as their Auncestors in like Case have usually done) for the Vindicating and Asserting their ancient Rights and Liberties, Declare (list of rights including) … That the Subjects which are Protestants may have Arms for their Defence suitable to their Conditions and as allowed by Law.[38]

    The historical link between the English Bill of Rights and the Second Amendment, which both codify an existing right and do not create a new one, has been acknowledged by the U.S. Supreme Court.[40][41]

    The English Bill of Rights includes the proviso that arms must be as “allowed by law.” This has been the case before and after the passage of the Bill. While it did not override earlier restrictions on the ownership of guns for hunting, it was written to preserve the hunting rights of the landed aristocracy and is subject to the parliamentary right to implicitly or explicitly repeal earlier enactments.[42] There is some difference of opinion as to how revolutionary the events of 1688–89 actually were, and several commentators make the point that the provisions of the English Bill of Rights did not represent new laws, but rather stated existing rights. Mark Thompson wrote that, apart from determining the succession, the English Bill of Rights did “little more than set forth certain points of existing laws and simply secured to Englishmen the rights of which they were already posessed [sic].”[43]Before and after the English Bill of Rights, the government could always disarm any individual or class of individuals it considered dangerous to the peace of the realm.[44] In 1765, William Blackstone wrote the Commentaries on the Laws of England describing the right to have arms in England during the 18th century as a natural right of the subject that was “also declared” in the English Bill of Rights.[45][46]

    The fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. st.2. c.2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.[47]

    Although there is little doubt that the writers of the Second Amendment were heavily influenced by the English Bill of Rights, it is a matter of interpretation as to whether they were intent on preserving the power to regulate arms to the states over the federal government (as the English Parliament had reserved for itself against the monarch) or whether it was intent on creating a new right akin to the right of others written into the Constitution (as the Supreme Court decided in Heller). Some in the United States have preferred the “rights” argument arguing that the English Bill of Rights had granted a right. The need to have arms for self-defence was not really in question. Peoples all around the world since time immemorial had armed themselves for the protection of themselves and others, and as organized nations began to appear these arrangements had been extended to the protection of the state.[48] Without a regular army and police force (which in England was not established until 1829), it had been the duty of certain men to keep watch and ward at night and to confront and capture suspicious persons. Every subject had an obligation to protect the king’s peace and assist in the suppression of riots.[49]

    Experience in America prior to the U.S. Constitution

    Ideals that helped to inspire the Second Amendment in part are symbolized by the minutemen.[50]

    Early English settlers in America viewed the right to arms and/or the right to bear arms and/or state militias as important for one or more of these purposes (in no particular order):[51][52][53][54][55][56][57][58]

    • enabling the people to organize a militia system.
    • participating in law enforcement;
    • deterring tyrannical government;[59]
    • repelling invasion;
    • suppressing insurrection, allegedly including slave revolts;[60][61][62]
    • facilitating a natural right of self-defense.

    Which of these considerations were thought of as most important and ultimately found expression in the Second Amendment is disputed. Some of these purposes were explicitly mentioned in early state constitutions; for example, the Pennsylvania Constitution of 1776 asserted that, “the people have a right to bear arms for the defence of themselves and the state”.[63]

    During the 1760s pre-revolutionary period, the established colonial militia was composed of colonists, including many who were loyal to British imperial rule. As defiance and opposition to British rule developed, a distrust of these Loyalists in the militia became widespread among the colonists, known as Patriots, who favored independence from British rule. As a result, some Patriots created their own militias that excluded the Loyalists and then sought to stock independent armories for their militias. In response to this arms build up, the British Parliament established an embargo on firearms, parts and ammunition on the American colonies.[64]

    British and Loyalist efforts to disarm the colonial Patriot militia armories in the early phases of the American Revolution resulted in the Patriot colonists protesting by citing the Declaration of Rights, Blackstone’s summary of the Declaration of Rights, their own militia laws and common law rights to self-defense.[65] While British policy in the early phases of the Revolution clearly aimed to prevent coordinated action by the Patriot militia, some have argued that there is no evidence that the British sought to restrict the traditional common law right of self-defense.[65] Patrick J. Charles disputes these claims citing similar disarming by the patriots and challenging those scholars’ interpretation of Blackstone.[66]

    The right of the colonists to arms and rebellion against oppression was asserted, for example, in a pre-revolutionary newspaper editorial in 1769 Boston objecting to the British army suppression of colonial opposition to the Townshend Acts:

    Instances of the licentious and outrageous behavior of the military conservators of the peace still multiply upon us, some of which are of such nature, and have been carried to such lengths, as must serve fully to evince that a late vote of this town, calling upon its inhabitants to provide themselves with arms for their defense, was a measure as prudent as it was legal: such violences are always to be apprehended from military troops, when quartered in the body of a populous city; but more especially so, when they are led to believe that they are become necessary to awe a spirit of rebellion, injuriously said to be existing therein. It is a natural right which the people have reserved to themselves, confirmed by the Bill of Rights, to keep arms for their own defence; and as Mr. Blackstone observes, it is to be made use of when the sanctions of society and law are found insufficient to restrain the violence of oppression.[65]

    The armed forces that won the American Revolution consisted of the standing Continental Army created by the Continental Congress, together with regular French army and naval forces and various state and regional militia units. In opposition, the British forces consisted of a mixture of the standing British Army, Loyalist militia and Hessian mercenaries. Following the Revolution, the United States was governed by the Articles of Confederation. Federalists argued that this government had an unworkable division of power between Congress and the states, which caused military weakness, as the standing army was reduced to as few as 80 men.[67] They considered it to be bad that there was no effective federal military crackdown on an armed tax rebellion in western Massachusetts known as Shays’ Rebellion.[68] Anti-federalists on the other hand took the side of limited government and sympathized with the rebels, many of whom were former Revolutionary War soldiers. Subsequently, the Constitutional Convention proposed in 1787 to grant Congress exclusive power to raise and support a standing army and navy of unlimited size.[69][70] Anti-federalists objected to the shift of power from the states to the federal government, but as adoption of the Constitution became more and more likely, they shifted their strategy to establishing a bill of rights that would put some limits on federal power.[71]

    Modern scholars Thomas B. McAffee and Michael J. Quinlan have stated that James Madison “did not invent the right to keep and bear arms when he drafted the Second Amendment; the right was pre-existing at both common law and in the early state constitutions.”[72]In contrast, historian Jack Rakove suggests that Madison’s intention in framing the Second Amendment was to provide assurances to moderate Anti-Federalists that the militias would not be disarmed.[73]

    One aspect of the gun control debate is the conflict between gun control laws and the right to rebel against unjust governments. Blackstone in his Commentaries alluded to this right to rebel as the natural right of resistance and self preservation, to be used only as a last resort, exercisable when “the sanctions of society and laws are found insufficient to restrain the violence of oppression”.[74] Some believe that the framers of the Bill of Rights sought to balance not just political power, but also military power, between the people, the states and the nation,[75] as Alexander Hamilton explained in 1788:

    [I]f circumstances should at any time oblige the government to form an army of any magnitude[, ] that army can never be formidable to the liberties of the people while there is a large body of citizens, little, if at all, inferior to them in discipline and the use of arms, who stand ready to defend their own rights and those of their fellow-citizens.[75][76]

    Some scholars have said that it is wrong to read a right of armed insurrection in the Second Amendment because clearly the founding fathers sought to place trust in the power of the ordered liberty of democratic government versus the anarchy of insurrectionists.[77][78]Other scholars, such as Glenn Reynolds, contend that the framers did believe in an individual right to armed insurrection. The latter scholars cite examples, such as the Declaration of Independence (describing in 1776 “the Right of the People to…institute new Government”) and the Constitution of New Hampshire (stating in 1784 that “nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind”).[79]

    There was an ongoing debate beginning in 1789 about “the people” fighting governmental tyranny (as described by Anti-Federalists); or the risk of mob rule of “the people” (as described by the Federalists) related to the increasingly violent French Revolution.[80] A widespread fear, during the debates on ratifying the Constitution, was the possibility of a military takeover of the states by the federal government, which could happen if the Congress passed laws prohibiting states from arming citizens,[81] or prohibiting citizens from arming themselves.[65] Though it has been argued that the states lost the power to arm their citizens when the power to arm the militia was transferred from the states to the federal government by Article I, Section 8 of the Constitution, the individual right to arm was retained and strengthened by the Militia Acts of 1792 and the similar act of 1795.[82][83]

    Drafting and adoption of the Constitution

    James Madison (left) is known as the “Father of the Constitution” and “Father of the Bill of Rights”[84] while George Mason (right) with Madison is also known as the “Father of the Bill of Rights”[85]
    Patrick Henry (left) believed that a citizenry trained in arms was the only sure guarantor of liberty[86] while Alexander Hamilton (right) wrote in Federalist No. 29 that “little more can be reasonably aimed at, with respect to the people at large, than to have them properly armed …”[76]

    In March 1785, delegates from Virginia and Maryland assembled at the Mount Vernon Conference to fashion a remedy to the inefficiencies of the Articles of Confederation. The following year, at a meeting in Annapolis, Maryland, 12 delegates from five states (New JerseyNew YorkPennsylvaniaDelaware, and Virginia) met and drew up a list of problems with the current government model. At its conclusion, the delegates scheduled a follow-up meeting in Philadelphia, Pennsylvania for May 1787 to present solutions to these problems, such as the absence of:[87][88]

    • interstate arbitration processes to handle quarrels between states;
    • sufficiently trained and armed intrastate security forces to suppress insurrection;
    • a national militia to repel foreign invaders.

    It quickly became apparent that the solution to all three of these problems required shifting control of the states’ militias to the federal congress and giving that congress the power to raise a standing army.[89] Article 1, Section 8 of the Constitution codified these changes by allowing the Congress to provide for the common defense and general welfare of the United States by doing the following:[90]

    • raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;
    • provide and maintain a navy;
    • make rules for the government and regulation of the land and naval forces;
    • provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;
    • provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress.

    Some representatives mistrusted proposals to enlarge federal powers, because they were concerned about the inherent risks of centralizing power. Federalists, including James Madison, initially argued that a bill of rights was unnecessary, sufficiently confident that the federal government could never raise a standing army powerful enough to overcome a militia.[91] Federalist Noah Webster argued that an armed populace would have no trouble resisting the potential threat to liberty of a standing army.[92][93] Anti-federalists, on the other hand, advocated amending the Constitution with clearly defined and enumerated rights providing more explicit constraints on the new government. Many Anti-federalists feared the new federal government would choose to disarm state militias. Federalists countered that in listing only certain rights, unlisted rights might lose protection. The Federalists realized there was insufficient support to ratify the Constitution without a bill of rights and so they promised to support amending the Constitution to add a bill of rights following the Constitution’s adoption. This compromisepersuaded enough Anti-federalists to vote for the Constitution, allowing for ratification.[94] The Constitution was declared ratified on June 21, 1788, when nine of the original thirteen states had ratified it. The remaining four states later followed suit, although the last two states, North Carolina and Rhode Island, ratified only after Congress had passed the Bill of Rights and sent it to the states for ratification.[95] James Madison drafted what ultimately became the Bill of Rights, which was proposed by the first Congress on June 8, 1789, and was adopted on December 15, 1791.

    Ratification debates

    The debate surrounding the Constitution’s ratification is of practical importance, particularly to adherents of originalist and strict constructionist legal theories. In the context of such legal theories and elsewhere, it is important to understand the language of the Constitution in terms of what that language meant to the people who wrote and ratified the Constitution.[96]

    The Second Amendment was relatively uncontroversial at the time of its ratification.[97] Robert Whitehill, a delegate from Pennsylvania, sought to clarify the draft Constitution with a bill of rights explicitly granting individuals the right to hunt on their own land in season,[98]though Whitehill’s language was never debated.[99]

    There was substantial opposition to the new Constitution, because it moved the power to arm the state militias from the states to the federal government. This created a fear that the federal government, by neglecting the upkeep of the militia, could have overwhelming military force at its disposal through its power to maintain a standing army and navy, leading to a confrontation with the states, encroaching on the states’ reserved powers and even engaging in a military takeover. Article VI of the Articles of Confederation states:

    No vessel of war shall be kept up in time of peace by any State, except such number only, as shall be deemed necessary by the united States in congress assembled, for the defense of such State, or its trade; nor shall any body of forces be kept up by any State in time of peace, except such number only, as in the judgement of the united States, in congress assembled, shall be deemed requisite to garrison the forts necessary for the defense of such State; but every State shall always keep up a well-regulated and disciplined militia, sufficiently armed and accoutered, and shall provide and constantly have ready for use, in public stores, a due number of field pieces and tents, and a proper quantity of arms, ammunition and camp equipage.[100][101]

    In contrast, Article I, Section 8, Clause 16 of the U.S. Constitution states:

    To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.[102]

    A foundation of American political thought during the Revolutionary period was concern about political corruption and governmental tyranny. Even the federalists, fending off their opponents who accused them of creating an oppressive regime, were careful to acknowledge the risks of tyranny. Against that backdrop, the framers saw the personal right to bear arms as a potential check against tyranny. Theodore Sedgwick of Massachusetts expressed this sentiment by declaring that it is “a chimerical idea to suppose that a country like this could ever be enslaved … Is it possible … that an army could be raised for the purpose of enslaving themselves or their brethren? or, if raised whether they could subdue a nation of freemen, who know how to prize liberty and who have arms in their hands?”[103] Noah Webster similarly argued:

    Before a standing army can rule the people must be disarmed; as they are in almost every kingdom in Europe. The supreme power in America cannot enforce unjust laws by the sword; because the whole body of the people are armed, and constitute a force superior to any band of regular troops that can be, on any pretence, raised in the United States.[104][105]

    George Mason argued the importance of the militia and right to bear arms by reminding his compatriots of England’s efforts “to disarm the people; that it was the best and most effectual way to enslave them … by totally disusing and neglecting the militia.” He also clarified that under prevailing practice the militia included all people, rich and poor. “Who are the militia? They consist now of the whole people, except a few public officers.” Because all were members of the militia, all enjoyed the right to individually bear arms to serve therein.[104][106]

    Writing after the ratification of the Constitution, but before the election of the first Congress, James Monroe included “the right to keep and bear arms” in a list of basic “human rights”, which he proposed to be added to the Constitution.[107]

    Patrick Henry argued in the Virginia ratification convention on June 5, 1788, for the dual rights to arms and resistance to oppression:

    Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.[108]

    While both Monroe and John Adams supported the Constitution being ratified, its most influential framer was James Madison. In Federalist No. 46, he confidently contrasted the federal government of the United States to the European kingdoms, which he contemptuously described as “afraid to trust the people with arms.” He assured his fellow citizens that they need never fear their government because of “the advantage of being armed …”[104][109]

    By January 1788, Delaware, Pennsylvania, New Jersey, Georgia and Connecticut ratified the Constitution without insisting upon amendments. Several specific amendments were proposed, but were not adopted at the time the Constitution was ratified. For example, the Pennsylvania convention debated fifteen amendments, one of which concerned the right of the people to be armed, another with the militia. The Massachusetts convention also ratified the Constitution with an attached list of proposed amendments. In the end, the ratification convention was so evenly divided between those for and against the Constitution that the federalists agreed to amendments to assure ratification. Samuel Adams proposed that the Constitution:

    Be never construed to authorize Congress to infringe the just liberty of the press, or the rights of conscience; or to prevent the people of the United States, who are peaceable citizens, from keeping their own arms; or to raise standing armies, unless when necessary for the defence of the United States, or of some one or more of them; or to prevent the people from petitioning, in a peaceable and orderly manner, the federal legislature, for a redress of their grievances: or to subject the people to unreasonable searches and seizures.[104]

    Conflict and compromise in Congress produce the Bill of Rights

    James Madison‘s initial proposal for a bill of rights was brought to the floor of the House of Representatives on June 8, 1789, during the first session of Congress. The initial proposed passage relating to arms was:

    The right of the people to keep and bear arms shall not be infringed; a well armed and well regulated militia being the best security of a free country but no person religiously scrupulous of bearing arms shall be compelled to render military service in person.[110]

    On July 21, Madison again raised the issue of his bill and proposed a select committee be created to report on it. The House voted in favor of Madison’s motion,[111] and the Bill of Rights entered committee for review. The committee returned to the House a reworded version of the Second Amendment on July 28.[112] On August 17, that version was read into the Journal:

    A well regulated militia, composed of the body of the people, being the best security of a free State, the right of the people to keep and bear arms shall not be infringed; but no person religiously scrupulous shall be compelled to bear arms.[113]

    In late August 1789, the House debated and modified the Second Amendment. These debates revolved primarily around risk of “mal-administration of the government” using the “religiously scrupulous” clause to destroy the militia as Great Britain had attempted to destroy the militia at the commencement of the American Revolution. These concerns were addressed by modifying the final clause, and on August 24, the House sent the following version to the Senate:

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms shall not be infringed; but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.

    The next day, August 25, the Senate received the amendment from the House and entered it into the Senate Journal. However, the Senate scribe added a comma before “shall not be infringed” and changed the semicolon separating that phrase from the religious exemption portion to a comma:

    A well regulated militia, composed of the body of the people, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed, but no one religiously scrupulous of bearing arms shall be compelled to render military service in person.[114]

    By this time, the proposed right to keep and bear arms was in a separate amendment, instead of being in a single amendment together with other proposed rights such as the due process right. As a Representative explained, this change allowed each amendment to “be passed upon distinctly by the States.”[115] On September 4, the Senate voted to change the language of the Second Amendment by removing the definition of militia, and striking the conscientious objector clause:

    A well regulated militia, being the best security of a free state, the right of the people to keep and bear arms, shall not be infringed.[116]

    The Senate returned to this amendment for a final time on September 9. A proposal to insert the words “for the common defence” next to the words “bear arms” was defeated. An extraneous comma added on August 25 was also removed.[117] The Senate then slightly modified the language and voted to return the Bill of Rights to the House. The final version passed by the Senate was:

    A well regulated militia being the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    The House voted on September 21, 1789 to accept the changes made by the Senate, but the amendment as finally entered into the House journal contained the additional words “necessary to”:

    A well regulated militia being necessary to the security of a free State, the right of the People to keep and bear arms shall not be infringed.[118]

    On December 15, 1791, the Bill of Rights (the first ten amendments to the Constitution) was adopted, having been ratified by three-fourths of the states.

    Militia in the decades following ratification

    Ketland brass barrel smooth bore pistol common in Colonial America

    During the first two decades following the ratification of the Second Amendment, public opposition to standing armies, among Anti-Federalists and Federalists alike, persisted and manifested itself locally as a general reluctance to create a professional armed police force, instead relying on county sheriffs, constables and night watchmen to enforce local ordinances.[64] Though sometimes compensated, often these positions were unpaid – held as a matter of civic duty. In these early decades, law enforcement officers were rarely armed with firearms, using billy clubs as their sole defensive weapons.[64] In serious emergencies, a posse comitatus, militia company, or group of vigilantesassumed law enforcement duties; these individuals were more likely than the local sheriff to be armed with firearms.[64] On May 8, 1792, Congress passed “[a]n act more effectually to provide for the National Defence, by establishing an Uniform Militia throughout the United States” requiring:

    [E]ach and every free able-bodied white male citizen of the respective States, resident therein, who is or shall be of age of eighteen years, and under the age of forty-five years (except as is herein after excepted) shall severally and respectively be enrolled in the militia…[and] every citizen so enrolled and notified, shall, within six months thereafter, provide himself with a good musket or firelock, a sufficient bayonet and belt, two spare flints, and a knapsack, a pouch with a box therein to contain not less than twenty-four cartridges, suited to the bore of his musket or firelock, each cartridge to contain a proper quantity of powder and ball: or with a good rifle, knapsack, shot-pouch and powder-horn, twenty balls suited to the bore of his rifle, and a quarter of a pound of powder; and shall appear, so armed, accoutred and provided, when called out to exercise, or into service, except, that when called out on company days to exercise only, he may appear without a knapsack.[119]

    The act also gave specific instructions to domestic weapon manufacturers “that from and after five years from the passing of this act, muskets for arming the militia as herein required, shall be of bores sufficient for balls of the eighteenth part of a pound.”[119] In practice, private acquisition and maintenance of rifles and muskets meeting specifications and readily available for militia duty proved problematic; estimates of compliance ranged from 10 to 65 percent.[120] Compliance with the enrollment provisions was also poor. In addition to the exemptions granted by the law for custom-house officers and their clerks, post-officers and stage drivers employed in the care and conveyance of U.S. mail, ferrymen, export inspectors, pilots, merchant mariners and those deployed at sea in active service; state legislatures granted numerous exemptions under Section 2 of the Act, including exemptions for: clergy, conscientious objectors, teachers, students, and jurors. And though a number of able-bodied white men remained available for service, many simply did not show up for militia duty. Penalties for failure to appear were enforced sporadically and selectively.[121] None is mentioned in the legislation.[119]

    The Model 1795 Musket was made in the U.S. and used in the War of 1812

    The first test of the militia system occurred in July 1794, when a group of disaffected Pennsylvania farmers rebelled against federal tax collectors whom they viewed as illegitimate tools of tyrannical power.[122] Attempts by the four adjoining states to raise a militia for nationalization to suppress the insurrection proved inadequate. When officials resorted to drafting men, they faced bitter resistance. Forthcoming soldiers consisted primarily of draftees or paid substitutes as well as poor enlistees lured by enlistment bonuses. The officers, however, were of a higher quality, responding out of a sense of civic duty and patriotism, and generally critical of the rank and file.[64] Most of the 13,000 soldiers lacked the required weaponry; the war department provided nearly two-thirds of them with guns.[64] In October, President George Washington and General Harry Lee marched on the 7,000 rebels who conceded without fighting. The episode provoked criticism of the citizen militia and inspired calls for a universal militia. Secretary of War Henry Knox and Vice-President John Adams had lobbied Congress to establish federal armories to stock imported weapons and encourage domestic production.[64] Congress did subsequently pass “[a]n act for the erecting and repairing of Arsenals and Magazines” on April 2, 1794, two months prior to the insurrection.[123]Nevertheless, the militia continued to deteriorate and twenty years later, the militia’s poor condition contributed to several losses in the War of 1812, including the sacking of Washington, D.C., and the burning of the White House in 1814.[121]

    Scholarly commentary

    Early commentary

    William Rawle of Pennsylvania (left) was a lawyer and district attorney; Thomas M. Cooleyof Michigan (right) was an educator and judge.
    Joseph Story of Massachusetts (left) became a U.S. Supreme Court justice; Tench Coxe of Pennsylvania (right) was a political economistand delegate to the Continental Congress.

    Richard Henry Lee

    In May of 1788, Richard Henry Lee wrote (Wikiquote link) in Additional Letters From The Federal Farmer #169 or Letter XVIII regarding the definition of a “militia.”

    George Mason

    In June of 1788, George Mason addressed (Wikiquote link) the Virginia Ratifying Convention regarding a “militia.”

    Tench Coxe

    In 1792, Tench Coxe made the following point in a commentary on the Second Amendment:[124]

    As civil rulers, not having their duty to the people duly before them, may attempt to tyrannize, and as the military forces which must be occasionally raised to defend our country, might pervert their power to the injury of their fellow citizens, the people are confirmed by the next article in their right to keep and bear their private arms.[125][126]

    Tucker/Blackstone

    The earliest published commentary on the Second Amendment by a major constitutional theorist was by St. George Tucker. He annotated a five-volume edition of Sir William Blackstone‘s Commentaries on the Laws of England, a critical legal reference for early American attorneys published in 1803.[127] Tucker wrote:

    A well regulated militia being necessary to the security of a free state, the right of the people to keep, and bear arms, shall not be infringed. Amendments to C. U. S. Art. 4. This may be considered as the true palladium of liberty … The right of self defence is the first law of nature: in most governments it has been the study of rulers to confine this right within the narrowest limits possible. Wherever standing armies are kept up, and the right of the people to keep and bear arms is, under any colour or pretext whatsoever, prohibited, liberty, if not already annihilated, is on the brink of destruction. In England, the people have been disarmed, generally, under the specious pretext of preserving the game : a never failing lure to bring over the landed aristocracy to support any measure, under that mask, though calculated for very different purposes. True it is, their bill of rights seems at first view to counteract this policy: but the right of bearing arms is confined to protestants, and the words suitable to their condition and degree, have been interpreted to authorise the prohibition of keeping a gun or other engine for the destruction of game, to any farmer, or inferior tradesman, or other person not qualified to kill game. So that not one man in five hundred can keep a gun in his house without being subject to a penalty.[128]

    In footnotes 40 and 41 of the Commentaries, Tucker stated that the right to bear arms under the Second Amendment was not subject to the restrictions that were part of English law: “The right of the people to keep and bear arms shall not be infringed. Amendments to C. U. S. Art. 4, and this without any qualification as to their condition or degree, as is the case in the British government” and “whoever examines the forest, and game laws in the British code, will readily perceive that the right of keeping arms is effectually taken away from the people of England.” Blackstone himself also commented on English game laws, Vol. II, p. 412, “that the prevention of popular insurrections and resistance to government by disarming the bulk of the people, is a reason oftener meant than avowed by the makers of the forest and game laws.”[127] Blackstone discussed the right of self-defense in a separate section of his treatise on the common law of crimes. Tucker’s annotations for that latter section did not mention the Second Amendment but cited the standard works of English jurists such as Hawkins.[129]

    Further, Tucker criticized the English Bill of Rights for limiting gun ownership to the very wealthy, leaving the populace effectively disarmed, and expressed the hope that Americans “never cease to regard the right of keeping and bearing arms as the surest pledge of their liberty.”[127]

    William Rawle

    Tucker’s commentary was soon followed, in 1825, by that of William Rawle in his landmark text, A View of the Constitution of the United States of America. Like Tucker, Rawle condemned England’s “arbitrary code for the preservation of game,” portraying that country as one that “boasts so much of its freedom,” yet provides a right to “protestant subjects only” that it “cautiously describ[es] to be that of bearing arms for their defence” and reserves for “[a] very small proportion of the people[.]”[130] In contrast, Rawle characterizes the second clause of the Second Amendment, which he calls the corollary clause, as a general prohibition against such capricious abuse of government power, declaring bluntly:

    No clause could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[131]

    Speaking of the Second Amendment generally, Rawle said:[132]

    The prohibition is general. No clause in the Constitution could by any rule of construction be conceived to give to congress a power to disarm the people. Such a flagitious attempt could only be made under some general pretence by a state legislature. But if in any blind pursuit of inordinate power, either should attempt it, this amendment may be appealed to as a restraint on both.[132][133]

    Rawle, long before the concept of incorporation was formally recognized by the courts, or Congress drafted the Fourteenth Amendment, contended that citizens could appeal to the Second Amendment should either the state or federal government attempt to disarm them. He did warn, however, that “this right [to bear arms] ought not…be abused to the disturbance of the public peace” and, paraphrasing Coke, observed: “An assemblage of persons with arms, for unlawful purpose, is an indictable offence, and even the carrying of arms abroad by a single individual, attended with circumstances giving just reason to fear that he purposes to make an unlawful use of them, would be sufficient cause to require him to give surety of the peace.”[130]

    Joseph Story

    Joseph Story articulated in his influential Commentaries on the Constitution[134] the orthodox view of the Second Amendment, which he viewed as the amendment’s clear meaning:

    The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpations and arbitrary power of rulers; and it will generally, even if these are successful in the first instance, enable the people to resist and triumph over them. And yet, though this truth would seem so clear, and the importance of a well-regulated militia would seem so undeniable, it cannot be disguised, that among the American people there is a growing indifference to any system of militia discipline, and a strong disposition, from a sense of its burdens, to be rid of all regulations. How it is practicable to keep the people duly armed without some organization, it is difficult to see. There is certainly no small danger, that indifference may lead to disgust, and disgust to contempt; and thus gradually undermine all the protection intended by this clause of our National Bill of Rights.[135][136]

    Story describes a militia as the “natural defence of a free country,” both against foreign foes, domestic revolts and usurpation by rulers. The book regards the militia as a “moral check” against both usurpation and the arbitrary use of power, while expressing distress at the growing indifference of the American people to maintaining such an organized militia, which could lead to the undermining of the protection of the Second Amendment.[136]

    Lysander Spooner

    Abolitionist Lysander Spooner, commenting on bills of rights, stated that the object of all bills of rights is to assert the rights of individuals against the government and that the Second Amendment right to keep and bear arms was in support of the right to resist government oppression, as the only security against the tyranny of government lies in forcible resistance to injustice, for injustice will certainly be executed, unless forcibly resisted.[137] Spooner’s theory provided the intellectual foundation for John Brown and other radical abolitionists who believed that arming slaves was not only morally justified, but entirely consistent with the Second Amendment.[138] An express connection between this right and the Second Amendment was drawn by Lysander Spooner who commented that a “right of resistance” is protected by both the right to trial by jury and the Second Amendment.[139]

    The congressional debate on the proposed Fourteenth Amendment concentrated on what the Southern States were doing to harm the newly freed slaves, including disarming the former slaves.[140]

    Timothy Farrar

    In 1867, Judge Timothy Farrar published his Manual of the Constitution of the United States of America, which was written when the Fourteenth Amendment was “in the process of adoption by the State legislatures.”:[126][141]

    The States are recognized as governments, and, when their own constitutions permit, may do as they please; provided they do not interfere with the Constitution and laws of the United States, or with the civil or natural rights of the people recognized thereby, and held in conformity to them. The right of every person to “life, liberty, and property,” to “keep and bear arms,” to the “writ of habeas corpus” to “trial by jury,” and divers others, are recognized by, and held under, the Constitution of the United States, and cannot be infringed by individuals or even by the government itself.

    Judge Thomas Cooley

    Judge Thomas Cooley, perhaps the most widely read constitutional scholar of the nineteenth century, wrote extensively about this amendment,[142][143] and he explained in 1880 how the Second Amendment protected the “right of the people”:

    It might be supposed from the phraseology of this provision that the right to keep and bear arms was only guaranteed to the militia; but this would be an interpretation not warranted by the intent. The militia, as has been elsewhere explained, consists of those persons who, under the law, are liable to the performance of military duty, and are officered and enrolled for service when called upon. But the law may make provision for the enrolment of all who are fit to perform military duty, or of a small number only, or it may wholly omit to make any provision at all; and if the right were limited to those enrolled, the purpose of this guaranty might be defeated altogether by the action or neglect to act of the government it was meant to hold in check. The meaning of the provision undoubtedly is, that the people, from whom the militia must be taken, shall have the right to keep and bear arms; and they need no permission or regulation of law for the purpose.[144]

    Late 20th century commentary

    Assortment of 20th century handguns

    In the latter half of the 20th century, there was considerable debate over whether the Second Amendment protected an individual right or a collective right.[145] The debate centered on whether the prefatory clause (“A well regulated militia being necessary to the security of a free State”) declared the amendment’s only purpose or merely announced a purpose to introduce the operative clause (“the right of the People to keep and bear arms shall not be infringed”). Scholars advanced three competing theoretical models for how the prefatory clause should be interpreted.[146]

    The first, known as the “states’ rights” or “collective right” model, held that the Second Amendment does not apply to individuals; rather, it recognizes the right of each state to arm its militia. Under this approach, citizens “have no right to keep or bear arms, but the states have a collective right to have the National Guard”.[126] Advocates of collective rights models argued that the Second Amendment was written to prevent the federal government from disarming state militias, rather than to secure an individual right to possess firearms.[147] Prior to 2001, every circuit court decision that interpreted the Second Amendment endorsed the “collective right” model.[148][149] However, beginning with the Fifth Circuit’s opinion United States v. Emerson in 2001, some circuit courts recognized that the Second Amendment protects an individual right to bear arms.[150]

    The second, known as the “sophisticated collective right model”, held that the Second Amendment recognizes some limited individual right. However, this individual right could only be exercised by actively participating members of a functioning, organized state militia.[151][152] Some scholars have argued that the “sophisticated collective rights model” is, in fact, the functional equivalent of the “collective rights model.”[153] Other commentators have observed that prior to Emerson, five circuit courts specifically endorsed the “sophisticated collective right model”.[154]

    The third, known as the “standard model”, held that the Second Amendment recognized the personal right of individuals to keep and bear arms.[126] Supporters of this model argued that “although the first clause may describe a general purpose for the amendment, the second clause is controlling and therefore the amendment confers an individual right ‘of the people’ to keep and bear arms”.[155] Additionally, scholars who favored this model argued the “absence of founding-era militias mentioned in the Amendment’s preamble does not render it a ‘dead letter’ because the preamble is a ‘philosophical declaration’ safeguarding militias and is but one of multiple ‘civic purposes’ for which the Amendment was enacted”.[156]

    Under both of the collective right models, the opening phrase was considered essential as a pre-condition for the main clause.[157] These interpretations held that this was a grammar structure that was common during that era[158] and that this grammar dictated that the Second Amendment protected a collective right to firearms to the extent necessary for militia duty.[159] However, under the standard model, the opening phrase was believed to be prefatory or amplifying to the operative clause. The opening phrase was meant as a non-exclusive example – one of many reasons for the amendment.[45] This interpretation is consistent with the position that the Second Amendment protects a modified individual right.[160]

    The question of a collective right versus an individual right was progressively resolved in favor of the individual rights model, beginning with the Fifth Circuit ruling in United States v. Emerson (2001), along with the Supreme Court’s rulings in District of Columbia v. Heller(2008), and McDonald v. Chicago (2010). In Heller, the Supreme Court resolved any remaining circuit splits by ruling that the Second Amendment protects an individual right.[161] Although the Second Amendment is the only Constitutional amendment with a prefatory clause, such linguistic constructions were widely used elsewhere in the late eighteenth century.[162]

    Meaning of “well regulated militia”

    The term “regulated” means “disciplined” or “trained”.[163] In Heller, the U.S. Supreme Court stated that “[t]he adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”[164]

    In the year prior to the drafting of the Second Amendment, in Federalist No. 29 Alexander Hamilton wrote the following about “organizing”, “disciplining”, “arming”, and “training” of the militia as specified in the enumerated powers:

    If a well regulated militia be the most natural defence of a free country, it ought certainly to be under the regulation and at the disposal of that body which is constituted the guardian of the national security … confiding the regulation of the militia to the direction of the national authority … [but] reserving to the states … the authority of training the militia … A tolerable expertness in military movements is a business that requires time and practice. It is not a day, or even a week, that will suffice for the attainment of it. To oblige the great body of the yeomanry, and of the other classes of the citizens, to be under arms for the purpose of going through military exercises and evolutions, as often as might be necessary to acquire the degree of perfection which would entitle them to the character of a well-regulated militia, would be a real grievance to the people, and a serious public inconvenience and loss … Little more can reasonably be aimed at, with respect to the People at large, than to have them properly armed and equipped; and in order to see that this be not neglected, it will be necessary to assemble them once or twice in the course of a year.[76]

    Justice Scalia, writing for the Court in Heller: “In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the ‘natural right of self-defence’ and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right”:

    Nor is the right involved in this discussion less comprehensive or valuable: “The right of the people to bear arms shall not be infringed.” The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, reestablished by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta! And Lexington, Concord, Camden, River Raisin, Sandusky, and the laurel-crowned field of New Orleans, plead eloquently for this interpretation! And the acquisition of Texas may be considered the full fruits of this great constitutional right.[165]

    Justice Stevens in dissent:

    When each word in the text is given full effect, the Amendment is most naturally read to secure to the people a right to use and possess arms in conjunction with service in a well-regulated militia. So far as appears, no more than that was contemplated by its drafters or is encompassed within its terms. Even if the meaning of the text were genuinely susceptible to more than one interpretation, the burden would remain on those advocating a departure from the purpose identified in the preamble and from settled law to come forward with persuasive new arguments or evidence. The textual analysis offered by respondent and embraced by the Court falls far short of sustaining that heavy burden. And the Court’s emphatic reliance on the claim “that the Second Amendment … codified a pre-existing right,” ante, at 19 [refers to p. 19 of the opinion], is of course beside the point because the right to keep and bear arms for service in a state militia was also a pre-existing right.[166]

    Meaning of “the right of the People”

    Justice Antonin Scalia, writing for the majority in Heller, stated:

    Nowhere else in the Constitution does a “right” attributed to “the people” refer to anything other than an individual right. What is more, in all six other provisions of the Constitution that mention “the people,” the term unambiguously refers to all members of the political community, not an unspecified subset. This contrasts markedly with the phrase “the militia” in the prefatory clause. As we will describe below, the “militia” in colonial America consisted of a subset of “the people” – those who were male, able bodied, and within a certain age range. Reading the Second Amendment as protecting only the right to “keep and bear Arms” in an organized militia therefore fits poorly with the operative clause’s description of the holder of that right as “the people”.[167]

    An earlier case, United States v. Verdugo-Urquidez (1990), dealt with nonresident aliens and the Fourth Amendment, but led to a discussion of who are “the People” when referred to elsewhere in the Constitution:[168]

    The Second Amendment protects “the right of the people to keep and bear Arms,” and the Ninth and Tenth Amendments provide that certain rights and powers are retained by and reserved to “the people” … While this textual exegesis is by no means conclusive, it suggests that “the people” protected by the Fourth Amendment, and by the First and Second Amendments, and to whom rights and powers are reserved in the Ninth and Tenth Amendments, refers to a class of persons who are part of a national community or who have otherwise developed sufficient connection with this country to be considered part of that community.

    There were several different reasons for this amendment, and protecting militias was only one of them; if protecting militias had been the only reason then the amendment could have instead referred to “the right of the militia to keep and bear arms” instead of “the right of the people to keep and bear arms”.[169][170]

    Meaning of “keep and bear arms”

    In Heller the majority rejected the view that the term “to bear arms” implies only the military use of arms:

    Before addressing the verbs “keep” and “bear,” we interpret their object: “Arms.” The term was applied, then as now, to weapons that were not specifically designed for military use and were not employed in a military capacity. Thus, the most natural reading of “keep Arms” in the Second Amendment is to “have weapons.” At the time of the founding, as now, to “bear” meant to “carry.” In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens “bear arms in defense of themselves and the state” again, in the most analogous linguistic context – that “bear arms” was not limited to the carrying of arms in a militia. The phrase “bear Arms” also had at the time of the founding an idiomatic meaning that was significantly different from its natural meaning: “to serve as a soldier, do military service, fight” or “to wage war.” But it unequivocally bore that idiomatic meaning only when followed by the preposition “against,”. Every example given by petitioners’ amici for the idiomatic meaning of “bear arms” from the founding period either includes the preposition “against” or is not clearly idiomatic. In any event, the meaning of “bear arms” that petitioners and Justice Stevens propose is not even the (sometimes) idiomatic meaning. Rather, they manufacture a hybrid definition, whereby “bear arms” connotes the actual carrying of arms (and therefore is not really an idiom) but only in the service of an organized militia. No dictionary has ever adopted that definition, and we have been apprised of no source that indicates that it carried that meaning at the time of the founding. Worse still, the phrase “keep and bear Arms” would be incoherent. The word “Arms” would have two different meanings at once: “weapons” (as the object of “keep”) and (as the object of “bear”) one-half of an idiom. It would be rather like saying “He filled and kicked the bucket” to mean “He filled the bucket and died.”[167]

    In a dissent, joined by Justices SouterGinsburg, and Breyer, Justice Stevens said:

    The Amendment’s text does justify a different limitation: the “right to keep and bear arms” protects only a right to possess and use firearms in connection with service in a state-organized militia. Had the Framers wished to expand the meaning of the phrase “bear arms” to encompass civilian possession and use, they could have done so by the addition of phrases such as “for the defense of themselves”.[171]

    Supreme Court cases

    In the century following the ratification of the Bill of Rights, the intended meaning and application of the Second Amendment drew less interest than it does in modern times.[172] The vast majority of regulation was done by states, and the first case law on weapons regulation dealt with state interpretations of the Second Amendment. A notable exception to this general rule was Houston v. Moore18 U.S. 1 (1820), where the U.S. Supreme Court mentioned the Second Amendment in an aside.[173] In the Dred Scott decision, the opinion of the court stated that if African Americans were considered U.S. citizens, “It would give to persons of the negro race, who were recognised as citizens in any one State of the Union, the right…to keep and carry arms wherever they went.”[174]

    State and federal courts historically have used two models to interpret the Second Amendment: the “individual rights” model, which holds that individuals hold the right to bear arms, and the “collective rights” model, which holds that the right is dependent on militia membership. The “collective rights” model has been rejected by the Supreme Court, in favor of the individual rights model.

    The Supreme Court’s primary Second Amendment cases include United States v. Miller, (1939); District of Columbia v. Heller (2008); and McDonald v. Chicago (2010).

    Heller and McDonald supported the individual rights model, under which the Second Amendment protects the right to keep and bear arms much as the First Amendment protects the right to free speech. Under this model, the militia is composed of members who supply their own arms and ammunition. This is generally recognized as the method by which militias have historically been armed, as the Supreme Court in Miller said:

    The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. ‘A body of citizens enrolled for military discipline.’ And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.[175]

    Of the collective rights model that holds that the right to arms is based on militia membership, the Supreme Court in Heller said:

    A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[176]

    United States v. Cruikshank

    In the Reconstruction Era case of United States v. Cruikshank92 U.S. 542 (1875), the defendants were white men who had killed more than sixty black people in what was known as the Colfax massacre and had been charged with conspiring to prevent blacks from exercising their right to bear arms. The Court dismissed the charges, holding that the Bill of Rights restricted Congress but not private individuals. The Court concluded, “[f]or their protection in its enjoyment, the people must look to the States.”[177]

    The Court stated that “[t]he Second Amendment…has no other effect than to restrict the powers of the national government ……”[178] Likewise, the Court held that there was no state action in this case, and therefore the Fourteenth Amendment was not applicable:

    The fourteenth amendment prohibits a State from depriving any person of life, liberty, or property, without due process of law; but this adds nothing to the rights of one citizen as against another.[179]

    Thus, the Court held a federal anti-Ku-Klux-Klan statute to be unconstitutional as applied in that case.[180]

    Presser v. Illinois

    In Presser v. Illinois116 U.S. 252 (1886), Herman Presser headed a German-American paramilitary shooting organization and was arrested for leading a parade group of 400 men, training and drilling with military weapons with the declared intention to fight, through the streets of Chicago as a violation of Illinois law that prohibited public drilling and parading in military style without a permit from the governor.[64][181]

    At his trial, Presser argued that the State of Illinois had violated his Second Amendment rights. The Supreme Court reaffirmed Cruikshank, and also held that the Second Amendment prevented neither the States nor Congress from barring private militias that parade with arms; such a right “cannot be claimed as a right independent of law.” This decision upheld the States’ authority to regulate the militia and that citizens had no right to create their own militias or to own weapons for semi-military purposes.[64] However the court said: “A state cannot prohibit the people therein from keeping and bearing arms to an extent that would deprive the United States of the protection afforded by them as a reserve military force.”[182]

    Miller v. Texas

    In Miller v. Texas153 U.S. 535 (1894), Franklin Miller was convicted and sentenced to be executed for shooting a police officer to death with an illegally carried handgun in violation of Texas law. Miller sought to have his conviction overturned, claiming his Second Amendment rights were violated and that the Bill of Rights should be applied to state law. The Supreme Court ruled that the Second Amendment did not apply to state laws such as the Texas law:[64] “As the proceedings were conducted under the ordinary forms of criminal prosecutions there certainly was no denial of due process of law.”[183]

    Robertson v. Baldwin

    In Robertson v. Baldwin165 U.S. 275 (1897), the Court stated in dicta that laws regulating concealed arms did not infringe upon the right to keep and bear arms and thus were not a violation of the Second Amendment:

    The law is perfectly well settled that the first ten amendments to the Constitution, commonly known as the “Bill of Rights,” were not intended to lay down any novel principles of government, but simply to embody certain guaranties and immunities which we had inherited from our English ancestors, and which had, from time immemorial, been subject to certain well recognized exceptions arising from the necessities of the case. In incorporating these principles into the fundamental law, there was no intention of disregarding the exceptions, which continued to be recognized as if they had been formally expressed. Thus, the freedom of speech and of the press (Art. I) does not permit the publication of libels, blasphemous or indecent articles, or other publications injurious to public morals or private reputation; the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons.[184]

    United States v. Miller

    In United States v. Miller307 U.S. 174 (1939), the Supreme Court rejected a Second Amendment challenge to the National Firearms Act prohibiting the interstate transportation of unregistered Title II weapons:

    Jack Miller and Frank Layton “did unlawfully … transport in interstate commerce from … Claremore … Oklahoma to … Siloam Springs … Arkansas a certain firearm … a double barrel … shotgun having a barrel less than 18 inches in length … at the time of so transporting said firearm in interstate commerce … not having registered said firearm as required by Section 1132d of Title 26, United States Code … and not having in their possession a stamp-affixed written order … as provided by Section 1132C …”[185]

    In a unanimous opinion authored by Justice McReynolds, the Supreme Court stated “the objection that the Act usurps police power reserved to the States is plainly untenable.”[186] As the Court explained:

    In the absence of any evidence tending to show that possession or use of a ‘shotgun having a barrel of less than eighteen inches in length’ at this time has some reasonable relationship to any preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment or that its use could contribute to the common defense.[187]

    Gun rights advocates claim that the Court in Miller ruled that the Second Amendment protected the right to keep arms that are part of “ordinary military equipment.”[188] They also claim that the Court did not consider the question of whether the sawed-off shotgun in the case would be an applicable weapon for personal defense, instead looking solely at the weapon’s suitability for the “common defense.”[189] Law professor Andrew McClurg states, “The only certainty about Miller is that it failed to give either side a clear-cut victory. Most modern scholars recognize this fact.”[190]

    District of Columbia v. Heller

    Judgment

    The Justices who decided Heller

    According to the syllabus prepared by the U.S. Supreme Court Reporter of Decisions,[191] in District of Columbia v. Heller554 U.S. 570 (2008), the Supreme Court held:[191][192]

    1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home. pp. 2–53.[191][192]

    (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms. pp. 2–22.[191][192]
    (b) The prefatory clause comports with the Court’s interpretation of the operative clause. The “militia” comprised all males physically capable of acting in concert for the common defense. The Antifederalists feared that the Federal Government would disarm the people in order to disable this citizens’ militia, enabling a politicized standing army or a select militia to rule. The response was to deny Congress power to abridge the ancient right of individuals to keep and bear arms, so that the ideal of a citizens’ militia would be preserved. pp. 22–28.[191][192]
    (c) The Court’s interpretation is confirmed by analogous arms-bearing rights in state constitutions that preceded and immediately followed the Second Amendment. pp. 28–30.[191][192]
    (d) The Second Amendment’s drafting history, while of dubious interpretive worth, reveals three state Second Amendment proposals that unequivocally referred to an individual right to bear arms. pp. 30–32.[191][192]
    (e) Interpretation of the Second Amendment by scholars, courts and legislators, from immediately after its ratification through the late 19th century also supports the Court’s conclusion. pp. 32–47.[191][192]
    (f) None of the Court’s precedents forecloses the Court’s interpretation. Neither United States v. Cruikshank, 92 U.S. 542, nor Presser v. Illinois, 116 U.S. 252, refutes the individual-rights interpretation. United States v. Miller, 307 U.S. 174, does not limit the right to keep and bear arms to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia, i.e., those in common use for lawful purposes. pp. 47–54.[191][192]
    2. Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms. Millers holding that the sorts of weapons protected are those “in common use at the time” finds support in the historical tradition of prohibiting the carrying of dangerous and unusual weapons. pp. 54–56.[191][192]
    3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment. The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home. pp. 56–64.[192]

    There are similar legal summaries of the Supreme Court’s findings in Heller.[193][194][195][196][197][198] For example, the Illinois Supreme Court in People v. Aguilar (2013), summed up Heller’s findings and reasoning:

    In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court undertook its first-ever “in-depth examination” of the second amendment’s meaning Id. at 635. After a lengthy historical discussion, the Court ultimately concluded that the second amendment “guarantee[s] the individual right to possess and carry weapons in case of confrontation” (id. at 592); that “central to” this right is “the inherent right of self-defense” (id. at 628); that “the home” is “where the need for defense of self, family, and property is most acute” (id. at 628); and that, “above all other interests,” the second amendment elevates “the right of law-abiding, responsible citizens to use arms in defense of hearth and home” (id. at 635). Based on this understanding, the Court held that a District of Columbia law banning handgun possession in the home violated the second amendment. Id. at 635.[199]

    Notes and analysis

    Heller has been widely described as a landmark decision.[200][201][202][203][204] To clarify that its ruling does not invalidate a broad range of existing firearm laws, the majority opinion, written by Justice Antonin Scalia, said:[205]

    Like most rights, the right secured by the Second Amendment is not unlimited … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.[206]

    The Court’s statement that the right is limited has been widely discussed by lower courts and the media.[207][208][209][210][211] The majority opinion also said that the amendment’s prefatory clause (referencing the “militia”) serves to clarify the operative clause (referencing “the people”), but does not limit the scope of the operative clause, because “the ‘militia’ in colonial America consisted of a subset of ‘the people’….”[212]

    Justice Stevens’ dissenting opinion, which was joined by the three other dissenters, said:

    The question presented by this case is not whether the Second Amendment protects a “collective right” or an “individual right.” Surely it protects a right that can be enforced by individuals. But a conclusion that the Second Amendment protects an individual right does not tell us anything about the scope of that right.[213]

    Stevens went on to say the following:

    The Second Amendment was adopted to protect the right of the people of each of the several States to maintain a well-regulated militia. It was a response to concerns raised during the ratification of the Constitution that the power of Congress to disarm the state militias and create a national standing army posed an intolerable threat to the sovereignty of the several States. Neither the text of the Amendment nor the arguments advanced by its proponents evidenced the slightest interest in limiting any legislature’s authority to regulate private civilian uses of firearms. Specifically, there is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution.[214]

    This dissent called the majority opinion “strained and unpersuasive” and said that the right to possess a firearm exists only in relation to the militia and that the D.C. laws constitute permissible regulation. In the majority opinion, Justice Stevens’ interpretation of the phrase “to keep and bear arms” was referred to as a “hybrid” definition that Stevens purportedly chose in order to avoid an “incoherent” and “[g]rotesque” idiomatic meeting.[214]

    Justice Breyer, in his own dissent joined by Stevens, Souter, and Ginsburg, stated that the entire Court subscribes to the proposition that “the amendment protects an ‘individual’ right – i.e., one that is separately possessed, and may be separately enforced, by each person on whom it is conferred”.[215]

    Regarding the term “well regulated”, the majority opinion said, “The adjective ‘well-regulated’ implies nothing more than the imposition of proper discipline and training.”[164] The majority opinion quoted Spooner from The Unconstitutionality of Slavery as saying that the right to bear arms was necessary for those who wanted to take a stand against slavery.[216] The majority opinion also stated that:

    A purposive qualifying phrase that contradicts the word or phrase it modifies is unknown this side of the looking glass (except, apparently, in some courses on Linguistics). If “bear arms” means, as we think, simply the carrying of arms, a modifier can limit the purpose of the carriage (“for the purpose of self-defense” or “to make war against the King”). But if “bear arms” means, as the petitioners and the dissent think, the carrying of arms only for military purposes, one simply cannot add “for the purpose of killing game.” The right “to carry arms in the militia for the purpose of killing game” is worthy of the mad hatter.[217]

    The dissenting justices were not persuaded by this argument.[218]

    Reaction to Heller has varied, with many sources giving focus to the ruling referring to itself as being the first in Supreme Court history to read the Second Amendment as protecting an individual right. The majority opinion, authored by Justice Scalia, gives explanation of the majority legal reasoning behind this decision.[192] The majority opinion made clear that the recent ruling did not foreclose the Court’s prior interpretations given in United States v. CruikshankPresser v. Illinois, and United States v. Miller though these earlier rulings did not limit the right to keep and bear arms solely to militia purposes, but rather limits the type of weapon to which the right applies to those used by the militia (i.e., those in common use for lawful purposes).[192]

    Heller pertained to three District of Columbia ordinances involving restrictions on firearms amounting to a total ban. These three ordinances were a ban on handgun registration, a requirement that all firearms in a home be either disassembled or have a trigger lock, and licensing requirement that prohibits carrying an unlicensed firearm in the home, such as from one room to another.

    Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition – in the place where the importance of the lawful defense of self, family, and property is most acute – would fail constitutional muster…. Because Heller conceded at oral argument that the District’s licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumed that a license will satisfy his prayer for relief and did not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.”[192]

    Justice Ginsburg has been a vocal critic of Heller. Speaking in an interview on public radio station WNYC, she called the Second Amendment “outdated,” saying:

    When we no longer need people to keep muskets in their home, then the Second Amendment has no function … If the Court had properly interpreted the Second Amendment, the Court would have said that amendment was very important when the nation was new; it gave a qualified right to keep and bear arms, but it was for one purpose only – and that was the purpose of having militiamen who were able to fight to preserve the nation.[219]

    McDonald v. City of Chicago

    On June 28, 2010, the Court in McDonald v. City of Chicago, 561 U.S. 3025 (2010), held that the Second Amendment was incorporated, saying that “[i]t is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.”[220] This means that the Court ruled that the Second Amendment limits state and local governments to the same extent that it limits the federal government.[14] It also remanded a case regarding a Chicago handgun prohibition. Four of the five Justices in the majority voted to do so by way of the Due Process Clause of the Fourteenth Amendment, while the fifth Justice, Clarence Thomas, voted to do so through the amendment’s Privileges or Immunities Clause.[221]

    Justice Thomas noted that the Privileges or Immunities Clause refers to “citizens” whereas the Due Process Clause refers more broadly to any “person”, and therefore Thomas reserved the issue of non-citizens for later decision.[222] After McDonald, many questions about the Second Amendment remain unsettled, such as whether non-citizens are protected through the Equal Protection Clause.[222]

    In People v. Aguilar (2013), the Illinois Supreme Court summed up the central Second Amendment findings in McDonald:

    Two years later, in McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (id. at ___, 130 S. Ct. at 3026); that “individual self-defense is ‘the central component’ of the Second Amendment right” (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that “[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day” (id. at ___, 130 S. Ct. at 3036).[199]

    Caetano v. Massachusetts

    On March 21, 2016, in a per curiam decision the Court vacated a Massachusetts Supreme Judicial Court decision upholding the conviction of a woman who carried a stun gun for self defense. The Court reiterated that the Heller and McDonald decisions saying that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding”, that “the Second Amendment right is fully applicable to the States”, and that the protection is not restricted to “only those weapons useful in warfare”.[15][223]

    United States Courts of Appeals decisions before and after Heller

    Before Heller

    Until District of Columbia v. Heller (2008), United States v. Miller (1939) had been the only Supreme Court decision that “tested a congressional enactment against [the Second Amendment].”[224] Miller did not directly mention either a collective or individual right, but for the 62-year period from Miller until the Fifth Circuit’s decision in United States v. Emerson (2001), federal courts recognized only the collective right,[225] with “courts increasingly referring to one another’s holdings…without engaging in any appreciably substantive legal analysis of the issue”.[224]

    Emerson changed this by addressing the question in depth, with the Fifth Circuit determining that the Second Amendment protects an individual right.[224] Subsequently, the Ninth Circuit conflicted with Emerson in Silviera v. Lockyer, and the D.C. Circuit supported Emerson in Parker v. District of Columbia.[224] Parker evolved into District of Columbia v. Heller, in which the U.S. Supreme Court determined that the Second Amendment protects an individual right.

    After Heller

    Since Heller, the United States courts of appeals have ruled on many Second Amendment challenges to convictions and gun control laws.[226][227] The following are post-Heller cases, divided by Circuit, along with summary notes:

    D.C. Circuit

    • Heller v. District of Columbia, Civil Action No. 08-1289 (RMU), No. 23., 25 – On March 26, 2010, the D.C. Circuit denied the follow up appeal of Dick Heller who requested the court to overturn the new District of Columbia gun control ordinances newly enacted after the 2008 Heller ruling. The court refused to do so, stating that the firearms registration procedures, the prohibition on assault weapons, and the prohibition on large capacity ammunition feeding devices were found to not violate the Second Amendment.[228] On September 18, 2015, the D.C. Circuit ruled that requiring gun owners to re-register a gun every three years, make a gun available for inspection or pass a test about firearms laws violated the Second Amendment, although the court upheld requirements that gun owners be fingerprinted, photographed, and complete a safety training course.[229]
    • Wrenn v. District of Columbia, No. 16-7025 – On July 25, 2017, the D.C. Circuit ruled that a District of Columbia regulation that limited conceal-carry licenses only to those individuals who could demonstrate, to the satisfaction of the chief of police, that they have a “good reason” to carry a handgun in public was essentially designed to prevent the exercise of the right to bear arms by most District residents and so violated the Second Amendment by amounting to a complete prohibition on firearms possession.[230]

    First Circuit

    • United States v. Rene E., 583 F.3d 8 (1st Cir. 2009) – On August 31, 2009, the First Circuit affirmed the conviction of a juvenile for the illegal possession of a handgun as a juvenile, under 18 U.S.C. § 922(x)(2)(A) and 18 U.S.C. § 5032, rejecting the defendant’s argument that the federal law violated his Second Amendment rights under Heller. The court cited “the existence of a longstanding tradition of prohibiting juveniles from both receiving and possessing handguns” and observed “the federal ban on juvenile possession of handguns is part of a longstanding practice of prohibiting certain classes of individuals from possessing firearms – those whose possession poses a particular danger to the public.”[231]

    Second Circuit

    • Kachalsky v. County of Westchester, 11-3942 – On November 28, 2012, the Second Circuit upheld New York’s may-issue concealed carry permit law, ruling that “the proper cause requirement is substantially related to New York’s compelling interests in public safety and crime prevention.”[232]

    Fourth Circuit

    • United States v. Hall, 551 F.3d 257 (4th Cir. 2009) – On August 4, 2008, the Fourth Circuit upheld as constitutional the prohibition of possession of a concealed weapon without a permit.[233]
    • United States v. Chester, 628 F.3d 673 (4th Cir. 2010) – On December 30, 2010, the Fourth Circuit vacated William Chester’s conviction for possession of a firearm after having been convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).[234] The court found that the district court erred in perfunctorily relying on Heller’s exception for “presumptively lawful” gun regulations made in accordance with “longstanding prohibitions”.[235]
    • Kolbe v. Hogan, No. 14-1945 (4th Cir. 2016) – On February 4, 2016, the Fourth Circuit vacated a U.S. District Court decision upholding a Maryland law banning high-capacity magazines and semi-automatic rifles, ruling that the District Court was wrong to have applied intermediate scrutiny. The Fourth Circuit ruled that the higher strict scrutiny standard is to be applied on remand.[236] On March 4, 2016, the court agreed to rehear the case en banc on May 11, 2016.[237]

    Fifth Circuit

    • United States v. Dorosan, 350 Fed. Appx. 874 (5th Cir. 2009) – On June 30, 2008, the Fifth Circuit upheld 39 C.F.R. 232.1(l), which bans weapons on postal property, sustaining restrictions on guns outside the home, specifically in private vehicles parked in employee parking lots of government facilities, despite Second Amendment claims that were dismissed. The employee’s Second Amendment rights were not infringed since the employee could have instead parked across the street in a public parking lot, instead of on government property.[238][239]
    • United States v. Bledsoe, 334 Fed. Appx. 771 (5th Cir. 2009) – The Fifth Circuit affirmed the decision of a U.S. District Court decision in Texas, upholding 18 U.S.C. § 922(a)(6), which prohibits “straw purchases.” A “straw purchase” occurs when someone eligible to purchase a firearm buys one for an ineligible person. Additionally, the court rejected the request for a strict scrutiny standard of review.[233]
    • United States v. Scroggins, 551 F.3d 257 (5th Cir. 2010) – On March 4, 2010, the Fifth Circuit affirmed the conviction of Ernie Scroggins for possession of a firearm as a convicted felon, in violation of 18 U.S.C. § 922(g)(1). The court noted that it had, prior to Heller, identified the Second Amendment as providing an individual right to bear arms, and had already, likewise, determined that restrictions on felon ownership of firearms did not violate this right. Moreover, it observed that Heller did not affect the longstanding prohibition of firearm possession by felons.

    Sixth Circuit

    • Tyler v. Hillsdale Co. Sheriff’s Dept., 775 F.3d 308 (6th Cir. 2014) – On December 18, 2014, the Sixth Circuit ruled that strict scrutiny should be applied to firearms regulations when regulations burden “conduct that falls within the scope of the Second Amendment right, as historically understood.”[240] At issue in this case was whether the Second Amendment is violated by a provision of the Gun Control Act of 1968 that prohibits possession of a firearm by a person who has been involuntarily committed to a psychiatric hospital. The court did not rule on the provision’s constitutionality, instead remanding the case to the United States district court that has earlier heard this case.[241] On April 21, 2015, the Sixth Circuit voted to rehear the case en banc, thereby vacating the December 18 opinion.[242]

    Seventh Circuit

    • United States v. Skoien, 587 F.3d 803 (7th Cir. 2009) – Steven Skoien, a Wisconsin man convicted of two misdemeanor domestic violence convictions, appealed his conviction based on the argument that the prohibition violated the individual rights to bear arms, as described in Heller. After initial favorable rulings in lower court based on a standard of intermediate scrutiny,[243] on July 13, 2010, the Seventh Circuit, sitting en banc, ruled 10–1 against Skoien and reinstated his conviction for a gun violation, citing the strong relation between the law in question and the government objective.[243] Skoien was convicted and sentenced to two years in prison for the gun violation, and will thus likely be subject to a lifetime ban on gun ownership.[244][245] Editorials favoring gun rights sharply criticized this ruling as going too far with the enactment of a lifetime gun ban,[246] while editorials favoring gun regulations praised the ruling as “a bucket of cold water thrown on the ‘gun rights’ celebration”.[247]
    • Moore v. Madigan (Circuit docket 12-1269)[248] – On December 11, 2012, the Seventh Circuit ruled that the Second Amendment protected a right to keep and bear arms in public for self-defense. This was an expansion of the Supreme Court’s decisions in Heller and McDonald, each of which referred only to such a right in the home. Based on this ruling, the court declared Illinois’s ban on the concealed carrying of firearms to be unconstitutional. The court stayed this ruling for 180 days, so Illinois could enact replacement legislation.[249][250][251] On February 22, 2013, a petition for rehearing en banc was denied by a vote of 5-4.[252] On July 9, 2013, the Illinois General Assembly, overriding Governor Quinn’s veto, passed a law permitting the concealed carrying of firearms.[253]

    Ninth Circuit

    • Nordyke v. King, 2012 WL 1959239 (9th Cir. 2012) – On July 29, 2009, the Ninth Circuit vacated an April 20 panel decision and reheard the case en banc on September 24, 2009.[254][255][256][257] The April 20 decision had held that the Second Amendment applies to state and local governments, while upholding an Alameda County, California ordinance that makes it a crime to bring a gun or ammunition on to, or possess either while on, county property.[258][259] The en banc panel remanded the case to the three-judge panel. On May 2, 2011, that panel ruled that intermediate scrutiny was the correct standard by which to judge the ordinance’s constitutionality and remanded the case to the United States District Court for the Northern District of California.[260] On November 28, 2011, the Ninth Circuit vacated the panel’s May 2 decision and agreed to rehear the case en banc.[261][262] On April 4, 2012, the panel sent the case to mediation.[263] The panel dismissed the case on June 1, 2012, but only after Alameda County officials changed their interpretation of the challenged ordinance. Under the new interpretation, gun shows may take place on county property under the ordinance’s exception for “events”, subject to restrictions regarding the display and handling of firearms.[264]
    • Teixeira v. County of Alameda, (Circuit docket 13-17132) – On May 16, 2016, the Ninth Circuit ruled that the right to keep and bear arms included being able to buy and sell firearms. The court ruled that a county law prohibiting a gun store being within 500 feet of a “[r]esidentially zoned district; elementary, middle or high school; pre-school or day care center; other firearms sales business; or liquor stores or establishments in which liquor is served” violated the Second Amendment.[265]

    See also

    Notes and citations

https://en.wikipedia.org/wiki/Second_Amendment_to_the_United_States_Constitution

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The Pronk Pops Show 956, August 31, 2017, Part 2 of 2, Story 1: President Trump’s Tax Speech — Very Light On Specifics — Let Congress Fill in The Details — Formula For Failure — Tax Rate Cuts Are Not Fundamental Tax Reform — A Broad Based Consumption Tax Such as The FairTax or Fair Tax Less Not Even Mentioned — What Good Is Dreaming It If You don’t actually do it! — Videos —

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Part 2 of 2 Story 1: President Trump’s Tax Speech — Very Light On Specifics — Let Congress Fill in The Details — Formula For Failure — Tax Rate Cuts Are Not Fundamental Tax Reform — A Broad Based Consumption Tax Such as The FairTax or Fair Tax Less Not Even Mentioned — What Good Is Dreaming It If You don’t actually do it! — Videos —

FULL. President Trump speech on tax reform in Springfield, Missouri. August 30, 2017.

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Trump’s Tax Reform Plan Targets Middle-Class Tax Complexity

Policy director at Competitive Enterprise Institute

President Trump visited Missouri to talk about tax reform, stressing simplicity and middle-class tax relief and “plans to bring back Main Street by reducing the crushing tax burden on our companies and on our workers.”

Noting the elimination of “dozens of loopholes,” special interest carve-outs, and the reduction of brackets and rates that Congress achieved three decades ago, Trump said, “the foundation of our job creation agenda is to fundamentally reform our tax code for the first time in more than 30 years. I want to work with Congress, Republicans and Democrats alike, on a plan that is pro-growth, pro-jobs, pro-worker — and pro-American.”

We’re about to re-enter Obamacare repeal-style complexity and venom, but it’s important, I think, for the public to see the tax reform debate as something other than a campaign to benefit business. The U.S. does have comparatively high corporate tax rates. And the Econ 101 lesson on tax incidence shows that consumers pay much of the corporate tax, not the company.

It’s probable some Democrats would like to reform the tax code, especially come 2016, but the zero-tolerance of Trump, such as that seen at the Commonwealth Club when Sen. Diane Feinstein was barely favorable toward him, prevails.

But things can turn on a dime, as the response, likely bipartisan, to Hurricane Harvey may further show. And separately the controversial debt limit needs to be addressed no matter what (hopefully with parallel cuts in regulatory costs), and that debate will influence the trajectory of tax reform.

My broader point here though is is that taxation is just the beginning of the story when it comes to the complexity of regulatory compliance. The economy marinates in compliance burdens to service noble ends, but sometimes serve regulators instead. Trump characterized the Internal Revenue Service’s unfairness to the typical taxpayer like this:

The tax code is now a massive source of complexity and frustration for tens of millions of Americans.

In 1935, the basic 1040 form that most people file had two simple pages of instructions. Today, that basic form has one hundred pages of instructions, and it’s pretty complex stuff. The tax code is so complicated that more than 90 percent of Americans need professional help to do their own taxes.

This enormous complexity is very unfair. It disadvantages ordinary Americans who don’t have an army of accountants while benefiting deep-pocketed special interests. And most importantly, this is wrong.

There’s solid backup for what Trump’s talking about in terms of pubic burdens, even if some are disinclined  to reckon with it, or if their allegiances require professing public disdain for corporations (one of the great democratizing forces in human history, but that’s another story).

The Government Accountability Office (GAO) agrees, I think, that Trump’s example of the IRS is a good one. In the course of a project I have of compiling examples of government proclamationsthat are not laws from Congress, nor even formal regulations from agencies, but instead “memoranda” and “guidance,” the IRS emerged as a leading “offender.”

A September 2016 GAO report called  “Regulatory Guidance Processes: Treasury and OMB Need to Reevaluate Long-standing Exemptions of Tax Regulations and Guidance,” looked at the Internal Revenue Service’s hierarchy of law, regulations, guidance, and explanatory material with respect to communicating interpretation of tax laws to the public.

It’s an eye-opener.

A pyramid diagram presented by GAO was topped by the Internal Revenue Code, as passed by Congress. Beneath that, in widening stages, one finds “Treasury Regulations,” “Internal Revenue Bulletins,” (IRB), “Written Determinations,” and “Other IRS Publications and Information.” The IRS regards the bulletins as generally authoritative, while determinations tend to apply to individual taxpayers.

That’s a lot of public guidance, difficult to absorb.

As the GAO explains:

Treasury and IRS are among the largest generators of federal agency regulations and they issue thousands of other forms of taxpayer guidance. IRS publishes tax regulations and other guidance in the weekly IRB. Each annual volume of the IRB contains about 2,000 pages of regulations and other guidance documents.

From 2013 to 2015, each annual Internal Revenue Bulletin edition contained some 300 guidance documents; back in 2002-2008, about 500.

When one sees such document proliferation from the IRS, an impartial observer might surmise the time for tax reform and simplification has arrived.

Likewise, when regulatory guidance multiplies that applies to various sectors—like finance, Internet, health care—one might similarly conclude the time has come for Congress to enact regulatory liberalization. Trump mentioned cutting the overall federal regulatory burden in the Missouri speech, too.

We knew it all along, but paying taxes also requires paying a lot of attention to regulations. In more ways than one, tax reform and regulatory reform go hand in hand.

https://www.forbes.com/sites/waynecrews/2017/08/30/trumps-tax-reform-plan-targets-middle-class-tax-complexity/#31fda3736ef8

Ann Coulter goes off on Trump over taxes, saying he delivered his ‘worst, most tone-deaf speech’

Conservative author Ann Coulter rebuked President Donald Trump over his speech on Wednesday in which he rolled out the broad outline of his tax reform plan.

In a slew of tweets on Wednesday, the firebrand conservative pundit said the president’s focus on simplifying the tax code and lowering business taxes to 15% was missing an opportunity to prioritize some of his more incendiary, but unique, policy objectives, including building a southern border wall and deporting immigrants living in the US without permission.

This isn’t a “once in a lifetime” shot at tax cuts! EVERY GOP cuts taxes! This is “once in a lifetime” shot to save US: Wall & deportations!

Bush cut taxes! Did it create millions of jobs? Nope. The rich pocketed their tax cut & sent jobs abroad, hired guest workers. F– them.

It’s so obvious Trump’s only getting polite applause for tax cuts. Want to get the crowd hollering, @realDonaldTrump? Talk about THE WALL!

It’s like Night of the Living Dead watching our beloved @realDonaldTrump go to DC & start babbling the same old GOP nonsense on tax cuts.

Tax cuts are a 2d term issue. 1st term: BUILD THE WALL, End DACA, Deport Illegals, No Refugees, No Muslims, Immigrn Moratorium. SAVE USA!

Cutting taxes doesn’t do a damn thing for wages if you allow businesses to keep bringing in cheap foreign labor!

To create jobs for AMERICANS, no more cheap foreign workers, CUT REGULATIONS & cut corporate taxes. (NOT income taxes.)

Coulter particularly singled out the similarities between Trump’s plan and a hypothetical plan that other Republicans like former Florida Gov. Jeb Bush would’ve put forward.

This speech could have been given by Jeb! — except even he wouldn’t have talked about the govt helping yuppie women with child care costs.

Oh stop pretending this is about letting “families” keep more of their money. HALF OF AMERICANS DON’T PAY TAXES! This is for Wall Street.

Indeed, beyond the prominent former Wall Street figures playing key roles in overhauling the tax code, Trump’s administration has absorbed some financial figures from Bush’s policy world.

Notably, Bush’s former senior policy director Justin Muzinich joined the Treasury Department in March to work closely with Treasury Secretary Steve Mnuchin on “major policy initiatives” and on tax reform.

Over the past several months, Coulter has increasingly criticized Trump and mocked him on social media and in interviews, saying that he has not fulfilled his anti-immigration campaign promises.

“The millions of people who haven’t voted for 30 years and came out to vote for Trump, thinking, ‘Finally, here’s somebody who cares about us’ — Nope!” Coulter told The Daily Beast after former chief strategist Steve Bannon left the White House earlier this month. “Republicans, Democrats — doesn’t matter. Jeb exclamation point, Donald Trump, Hillary Clinton — doesn’t matter. Goldman Sachs is running the country.”

http://www.businessinsider.com/ann-coulter-trump-taxes-speech-2017-8

 

Who Pays Income Taxes?

The charts below illustrate the share of taxes paid by income percentiles for Tax Year 2014, the most recent set of data available from the IRS. NTUF has broken down the federal share of income taxes by gross income to show how much each bracket contributes yearly.

For more information:

 

https://e.infogr.am/38b876d9-6c59-4a84-8b02-1ed223f6a454?src=embed

https://www.ntu.org/foundation/page/who-pays-income-taxes

Trump Hits The Road To Promote Tax Cuts (Details To Come)

President Trump participates in a tax overhaul kickoff event at the Loren Cook Company in Springfield, Mo., on Wednesday.

Jim Watson/AFP/Getty Images

Updated at 5:25 p.m. ET

President Trump called for a major rewrite of the U.S. tax code during a visit to Springfield, Mo., on Wednesday afternoon. The speech came a day after Trump’s trip to Harvey-hit Texas and is the first in what is expected to be a series of traveling sales pitches on taxes from the president.

But the White House is not ready to spell out what the rewrite will look like or what kind of price tag it will carry. Trump spoke in broad terms about creating a tax system that favors middle-class Americans and keeps business in the U.S.

“First and foremost our tax system should benefit loyal, hardworking Americans and their families. That is why tax reform must dramatically simplify the tax code, eliminate special-interest loopholes,” he said.

Trump called on Congress to join him and “unite in the name of common sense and the name of common good” to create jobs and improve America’s “competitive advantage.”

“I am fully committed to working with Congress to get this job done, and I don’t want to be disappointed by Congress,” he said.

Treasury Secretary Steven Mnuchin and National Economic Council Director Gary Cohn have been meeting regularly with Republican congressional leaders to discuss tax policy. Thus far, though, they’ve committed only to a vague statement of principles that calls for lower tax rates on both individuals and businesses. Cohn said it will be up to lawmakers to fill in the details.

“We’ve got a great, I would say, skeleton,” Cohn told reporters earlier this month. “We need the Ways and Means Committee to put some muscle and skin on the skeleton and drive tax reform forward. And it’s our objective to do that between now and the end of the year.”

With Republicans in control of the House, Senate and the presidency, supporters have described this as a once-in-a-generation opportunity to overhaul the tax code in accordance with GOP principles. But after Trump’s insistence on swift, ultimately unsuccessful bids to repeal the Affordable Care Act, some observers are skeptical that Trump has the patience or discipline to see a tax overhaul through to completion.

Mnuchin insists tax cuts are now Trump’s No. 1 priority.

“He’s going to go on the road,” Mnuchin said. “The president is 100 percent supportive of us passing legislation this year.”

The White House has been promising such a sales campaign for weeks, only to see much of August consumed with controversy over the president’s Charlottesville, Va., remarks and his intraparty carping with fellow Republicans, including Senate Majority Leader Mitch McConnell, R-Ky.

Mnuchin conceded that rewriting the tax code is a taller order than he initially imagined.

“Earlier in the year I said I thought we’d get it done by August, and I was wrong,” the Treasury secretary said. “I am now going to say that I’m very hopeful, and I think we can get this done by the end of the year, but we will continue to revisit it.”

“The president’s leadership on this is critical,” said a senior White House official who briefed reporters on the Springfield trip. “Everybody involved understands that and believes that. And he is ready to really take this conversation where it belongs and that’s the heartland of America.”

The official spoke on condition of anonymity.

“The president now feels that it’s the right time to begin engaging directly with the American people on tax reform,” he said.

The administration argues the current tax code is too complicated and rates are too high to encourage investment in the U.S.

“We are not competitive with the rest of the world on the business tax and on the personal income tax,” Cohn said.

Neither the White House nor congressional leaders have spelled out how much lower tax rates should go, nor have they specified how the government would make up the lost revenue. They’re counting on faster economic growth to help close the gap. They’ve also promised to eliminate unspecified tax “loopholes,” which Trump called out multiple times in his speech on Wednesday.

Back in April, the White House proposed lowering the corporate tax rate from 35 percent to 15 percent while reducing the top individual tax rate from 39.6 percent to 35 percent. That’s broadly similar to a proposal Trump put forward during the presidential campaign. The nonpartisan Tax Policy Center said at the time 78 percent of the tax savings in Trump’s campaign plan would go to people on the top 20 percent of the income ladder. (Nearly a quarter would go to the top one-tenth of 1 percent.)

The campaign plan was also forecast to reduce government revenue by more than $6 trillion over a decade — a gap that would be difficult to erase through growth and loophole closings.

The White House has said it wants to preserve deductions for charitable contributions, retirement savings and mortgage interest.

One popular tax break that could be on the chopping block is the deduction for state and local taxes. That’s one of the biggest loopholes in the tax code. Eliminating it would boost federal revenues by an estimated $1.3 trillion over a decade. The tax break is particularly popular with residents in the Northeast and West Coast, typically blue states with relatively high tax rates.

House Speaker Paul Ryan, R-Wis., favored a so-called border adjustment tax on imports as another way to raise revenue and offset the cost of income tax cuts. But lawmakers ultimately scrapped that idea after consultation with the administration.

Senate Republicans plan to use a procedural tactic to prevent Democrats from blocking the tax overhaul with a filibuster. Under Senate rules, though, any measure passed with that tactic must not add to the federal deficit for more than 10 years.

This presents a choice for Republicans: Go with a more modest tax cut that can be offset by growth and closing loopholes, or opt for a more ambitious cut but allow it to sunset after a decade.

For all the challenges, GOP lawmakers are under political pressure to pass something they can brand as “tax reform.” Otherwise, they’ll have to face voters in 2018 with little to show for two years of single-party rule.

http://www.npr.org/2017/08/30/547114024/trump-hits-the-road-to-promote-tax-cuts-details-to-come

 

Trump’s Fill-in-the-Blanks Tax Reform Plan

The president is leaving the details to Republicans in Congress. Only they haven’t figured them out yet, either.

Alex Brandon / AP

notable

On Wednesday, President Trump traveled to Missouri to expand on the need for tax reform, to lay the groundwork for a major legislative push in Congress this fall. But more than anything else, what Trump’s speech revealed was that despite months of behind-the-scenes negotiations, Republicans aren’t much closer to enacting the most significant overhaul of the tax code in 30 years than they were back in April.

Trump was pitching a plan that doesn’t exist and demanding votes for a bill that hasn’t been written. If anything, the address the president delivered was even less detailed than the skimpy blueprint the White House issued in the spring. The most specific item Trump mentioned—a 15 percent corporate tax rate, down from the current 35 percent—is something that Republican tax-writers on Capitol Hill believe is impossible to achieve under the parameters with which they must work. He talked in broad terms about simplifying the code so that it’s easier for people to file their taxes, removing unspecified special interest loopholes, and encouraging businesses to bring back profits they’ve parked overseas—all policies that have been central to GOP proposals for years and offer little indication of the particular direction the party plans to go.

This was a bully pulpit speech. Having laid down his principles, Trump is once again leaving the dirty work to Congress, a strategy that even he seemed to acknowledge was as risky as it is politically necessary. “I don’t want to be disappointed by Congress, do you understand me? Do you understand?” he warned at one point, a none-too-subtle reference to his recent hectoring over the GOP’s failure to deliver on health care.

To the delight of Republican leaders, the one lawmaker Trump singled out for pressure was not one of their own; for the first time in weeks, the president picked on a Democrat, Missouri Senator Claire McCaskill, who is up for reelection in a state he won easily in November. If McCaskill doesn’t vote for tax reform—whatever it turns out to be—“you have to vote her out of office,” Trump demanded of the crowd.

Top Republicans were evidently pleased with the speech, or at least with the fact that the president stuck to the message they were told beforehand he would deliver. Within minutes after it ended, statements (undoubtedly prewritten) flowed in with glowing reviews. “President Trump is taking the case for tax reform straight to Main Street,” House Speaker Paul Ryan said. “We are united in our determination to get this done.” Representative Kevin Brady, the chairman of the Ways and Means Committee, said his remarks were “excellent.” Even members of Trump’s Cabinet that have no role in tax reform, like Health and Human Services Secretary Tom Price, or in domestic politics whatsoever, like Secretary of State Rex Tillerson, chimed in with praise.Yet while Trump talked at length about the need for tax reform, he said little about how Republicans would get it done. And that’s because they still don’t know themselves. GOP leaders haven’t made several crucial decisions. Will the legislation be a revenue-neutral tax reform that fully offsets the reduction in rates by eliminating costly—and popular—exemptions and deductions? Or will it be a more straightforward tax cut, that would likely have to expire within a decade to comply with Senate rules? How low will they try to push down the corporate rate? About all they’ve determined is that 15 percent is too low, but will it be closer to 20 percent or 25 percent? And on, and on.
The Ways and Means Committee is currently writing the tax bill, but the only timeline they’ve set is to get it done by the end of 2018. The longer they take to write it, however, the less realistic that deadline becomes. And as I explainedearlier this month, Republicans must first pass a budget before they can even get to tax reform, which, to this point, has been no easy task.These unresolved details have also tripped up Trump’s messaging toward Democrats. Does he want their support, or are Republicans planning to do it alone as they tried to do on health care? In his speech, the president started out by saying he wanted to work with both parties to enact tax reform. Later on, however, he attacked Democrats as “obstructionists” and called out McCaskill. By the end, he was back where he began, saying tax reform was an issue on which lawmakers should put aside partisanship.Democrats say there’s been no outreach from the administration on taxes, and they’ve noted that Republicans are, for now, planning to use the same budget reconciliation process on tax reform that they used in trying to repeal the Affordable Care Act. That would allow them to skirt a Democratic filibuster and pass tax reform with a simple majority of 51 votes in the Senate. Unlike Obamacare repeal, some Democrats have expressed a willingness to work with the administration on taxes, so long as the GOP plan is not skewed to benefit the wealthy. With so few details, they were unimpressed with Trump’s speech in Missouri. “Stepping to the podium to declare that we need tax reform does not signal leadership on this issue; rather, doing so without offering any proposals on how to achieve it is an abdication,” said Representative Steny Hoyer of Maryland, the second-ranking House Democrat. “If the president is serious about tax reform, he should focus on the how, not the why.”Trump is not a detail-oriented president. That much is clear. But while he may be able to stick to broad strokes in rally-the-public speeches and leave the rest to Congress, his party will eventually have to make the tough decisions about who’s going to pay more, who gets to pay less, and by how much. Until that happens, tax reform isn’t going anywhere.

https://www.theatlantic.com/politics/archive/2017/08/trumps-fill-in-the-blanks-tax-reform-plan/538509/

Trump’s populist message on taxes comes with heavy dose of corporate rate cuts

Trump’s speech didn’t mask the fact that lawmakers still face a wide range of knotty questions when they return to Washington next week.

08/30/2017 01:59 PM EDT

Updated 08/30/2017 04:08 PM EDT

Trump maintained that a new tax system was crucial to ushering in a new prosperity in the U.S., in a speech that White House officials acknowledged beforehand would be light on policy details.

“Instead of exporting our jobs, we will export our goods. Our jobs will both stay here in America and come back to America. We’ll have it both ways,” Trump said at a Springfield, Mo., manufacturer, adding that millions of people would move from welfare to work and “will love earning a big fat beautiful paycheck.”

“We believe that ordinary Americans know better than Washington how to spend their own money and we want to help them take home as much of their money as possible and then spend it,” he said. “So they’ll keep their money, they’ll spend their money, they’ll buy our product.”

But Trump’s speech also underscored just how big a challenge he and a Republican Congress will face in pulling off a true overhaul of the tax code. The president only briefly touched on policy details, saying that businesses would “ideally” be taxed at a top rate of 15 percent and that the tax code would contain incentives for child care — a top priority of his daughter, Ivanka Trump.

“I am fully committed to working with Congress to get this job done,” Trump said. “And I don’t want to be disappointed by Congress. Do you understand me?”

Trump’s speech was aimed at showing that Republicans have the message down on tax reform, but lawmakers have yet to confront the monumental task of turning the rhetoric into reality.

Senior White House officials this week repeatedly billed the president’s speech as an address focused on why tax reform needs to happen, not how it will materialize. That’s the sort of big-picture cover on taxes that Trump didn’t offer congressional leaders in their doomed efforts to repeal and replace Obamacare.

But while congressional leaders undoubtedly welcome the president making the broad case for a tax revamp, Trump’s speech doesn’t mask the fact that lawmakers still face a wide range of knotty questions when they return to Washington next week.

Republicans still have to figure out how to pass a budget this fall, a process that will play a big role in deciding how generous a tax plan they can write. They also have to decide whether tax changes should be permanent or temporary, or a mix of the two, and whether their plan should be a net tax cut that would add to the deficit.

And that’s before they will feel the full brunt of a massive lobbying push on what would be the first major tax overhaul in more than 30 years. Already, GOP lawmakers are starting to hear from industries that might be the losers in a tax overhaul, such as big corporations that don’t want a minimum tax on foreign earnings and a retirement sector wary of potential changes to savings plans.

The hurdles won’t be limited to policy, either, after a summer that saw both sides of Pennsylvania Avenue grow increasingly wary of the other as the GOP’s health care efforts imploded. Republicans on Capitol Hill steamed privately in July that Trump’s obsession with White House infighting and the Russia controversy was a major factor in the death of the repeal effort. They’re crossing their fingers that he won’t be so easily distracted on tax reform.

 

Fact-checking President Trump’s speech on his tax plan

 August 31 at 3:00 AM
The Fact Checker’s round-up of five fishy claims made by President Trump in his speech on Aug. 30. (Meg Kelly/The Washington Post)

President Trump on Wednesday delivered an address on his “principles” for a tax plan in Springfield, Mo., though he provided few details. He also shifted from extolling how well the economy is doing to language that suggested the United States was suffering terribly. As usual, some of the president’s  facts and figures were a bit fishy, so here’s a roundup of 10 of his claims.

“In the last 10 years, our economy has grown at only around 2 percent a year.”

This is misleading. By going back 10 years, Trump includes the worst recession since the Great Depression, which brings down the 10-year average. This chart shows that that quarterly average since the recession was well above 2 percent, even hitting 5 percent in the third quarter of 2014. The GDP growth rate for the United States averaged 3.22 percent from 1947 to 2017.


Source: Bureau of Economic Analysis via Federal Reserve Bank of St. Louis

“We just announced that we hit 3 percent in GDP. Just came out. And on a yearly basis, as you know, the last administration, during an eight-year period, never hit 3 percent.

Trump plays some sleight-of-hand with the numbers. He first cites an annualized quarterly figure — 3 percent GDP growth in the second quarter of 2017 — and then compares it to what appears to be calendar-year figures for former president Barack Obama.

As the chart above shows, the economy grew better than 3 percent in eight quarters during Obama’s presidency, most recently in the third quarter of 2016. (Technically, this is known as “annualized quarterly change” or SAAR — seasonally adjusted at annual rate.) Trump gets his terminology wrong, using the phrase “yearly basis,” which could mean from the third quarter of 2015 to the the third quarter of 2016, in which case Obama easily exceeded 3 percent numerous times. On an annual basis, Obama’s best year was 2015, when annual growth was 2.6 percent.

“If we achieve sustained 3 percent growth, that means 12 million new jobs and $10 trillion of new economic activity over the next decade. That’s some numbers.”

With this statement, Trump downgrades promises he made during the 2016 campaign — he said he would achieve 4 percent GDP growth and 25 million jobs over 10 years.

“In 1935, the basic 1040 form that most people file had two simple pages of instruction. Today, that basic form has 100 pages of instructions, and it’s pretty complex stuff.”

Trump is correct that in 1935, the basic 1040 individual income tax form had two pages of instructions, but this claim needs historical context.

There are many reasons the instructions were so simple back then — including that just about 4 percent of the population paid the federal individual income tax. In 1935, the individual income tax largely was a tax on the wealthy. In fact, the top rate in 1935 was 63 percent — and President Franklin D. Roosevelt raised it to 75 percent later that year.

This changed with World War II. “Driven by staggering revenue needs, lawmakers in both parties agreed to raise taxes on everyone: rich, poor, and — especially — the middle class,” wrote Joseph Thorndike, director of the Tax History Project.

“The tax code is so complicated that more than 90 percent of Americans need professional help to do their own taxes.”

This is misleading. The 90 percent figure he is referring to includes people using tax software, such as Turbo Tax, which helps people file their taxes on their own. According to the National Taxpayer Advocate’s 2016 report, 54 percent of individual taxpayers pay preparers and about 40 percent of individual taxpayers use software that costs about $50 or more.

Yet later during the speech, he made it sound as if the “professional help” is only referring to hired accountants: “That is why tax reform must dramatically simplify the tax code … and allow the vast majority of our citizens to file their taxes on a single, simple page without having to hire an accountant.”

“Our last major tax rewrite was 31 years ago. It eliminated dozens of loopholes and special interest tax breaks, reduced the number of tax brackets from 15 to two, and lowered tax rates for both individuals and businesses. At the time it was really something special … In 1986, Ronald Reagan led the world by cutting our corporate tax rate to 34 percent. That was below the average rate for developed countries at the time. Everybody thought that was a monumental thing that happened. But then, under this pro-America system, our economy boomed. It just went beautifully right through the roof. The middle class thrived, and median family income increased.”

Trump heaped praise on Reagan’s Tax Reform Act of 1986, which simplified tax brackets and eliminated tax shelters; it also lowered the top individual tax rate to 28 percent but raised the capital gains rate to the same level, giving them parity. But this is a rather strange flip-flop because Trump always has been a fierce critic of the bill, blaming it repeatedly for the savings and loan crisis, a decline in real estate investing and the 1990-1991 recession.

“This tax act was just an absolute catastrophe for the country, for the real estate industry, and I really hope that something can be done,” Trump told Congress in 1991. In a television interview with Joan Rivers, he said: “What caused the savings and loan crisis was the 1986 tax law change. It was a disaster. It took all of the incentives away from investors.”

Trump also frequently attacked one of the Democratic sponsors of the bill, Sen. Bill Bradley (D-N.J.), such as in a Wall Street Journal commentary in 1999. “Mr. Bradley’s last big idea to be enacted into legislation was also one of the worst ideas in recent history,” Trump wrote, saying Bradley was responsible for the elimination of a tax shelter for real estate investments. (He said the good parts of the bill could be attributed to Reagan.)

“We lost the jobs. We lost the taxes. They closed the buildings. They closed the plants and factories. We got nothing but unemployment. We got nothing.”

As Trump frequently notes, the unemployment rate in July was 4.3 percent — the lowest level in 16 years. So this overwrought language seems misplaced.

“We have gone from a tax rate that is lower than our economic competitors, to one that is more than 60 percent higher. … In other words, foreign companies have more than a 60 percent tax advantage over American companies.”

The United States certainly has one of the highest statutory corporate tax rates in the world, currently pegged as high as 39.1 percent when including state taxes. (The federal rate is 35 percent.) Trump says it is 60 percent higher than “our economic competitors,” comparing 39.1 percent to the average rate for the other members of the Organization for Economic Co-operation and Development, which is 25.5 percent when not weighted for GDP. (It is 29.6 percent when weighted for GDP.)

But the official rate does not necessarily tell the whole story. What also matters is the actual tax a company pays, after deductions and tax benefits. That is known as the effective tax rate, which can be calculated differently depending on the survey. According to the Congressional Research Service, the effective rate for the United States is 27.1 percent, compared to an effective GDP-weighted average of 27.7 percent for the OECD. “Although the U.S. statutory tax rate is higher, the average effective rate is about the same, and the marginal rate on new investment is only slightly higher,” the CRS says.

The Congressional Budget Office, when it examined the issue, said the U.S. effective tax rate was 18.6 percent, which it said was among the highest of the biggest economic powers, the Group of 20.

Trump, naturally, used the numbers that suggest the difference is really huge.

“Today, we are still taxing our businesses at 35 percent, and it’s way more than that. And think of it, in some cases, way above 40 percent when you include state and local taxes in various states. The United States is now behind France, behind Germany, behind Canada, Ireland, Japan, Mexico, South Korea and many other nations.”

As we noted, the statutory federal corporate tax rate in the United States is 35 percent, making the United States the highest among G-20 countries, including the countries Trump listed. But the effective corporate tax rate in the United States in 2012 was 18.6 percent, making it the fourth highest among G-20 countries, behind Argentina, Japan and Britain, according to the CBO.

“Because of our high tax rate and horrible, outdated, bureaucratic rules, large companies that do business overseas will often park their profits offshore to avoid paying a high United States tax if the money is brought back home. So they leave the money over there. The amount of money we’re talking about is anywhere from $3 trillion to $5 trillion.”

There are no official, current numbers on the profits held overseas by U.S. companies, just estimates. The White House would not respond to a query on where Trump is getting these numbers, but his high-end figure appears to be an exaggeration. The Internal Revenue Service in 2012 said the figure was $2.3 trillion, and the Joint Committee on Taxation estimated that it had risen to $2.6 trillion in 2015. There are other estimates as well, but none top $2.8 trillion, according to PolitiFact.

https://www.washingtonpost.com/news/fact-checker/wp/2017/08/31/fact-checking-president-trumps-speech-on-his-tax-plan/?utm_term=.8ea0dc0c4d24

 

Story 2: Revised Second Estimate of Real GDP Growth in Second Quarter of 2017 Is 3 Percent — Videos

Economic growth hits 3% in Q2

Growth Rates Are Crucial

Nightly Business Report – August 30, 2017

Can Trump’s plan double U.S. economic growth?

How Trump’s economic proposals offer a vision from the past

What is Gross Domestic Product (GDP)?

Nominal vs. Real GDP

Real GDP Per Capita and the Standard of Living

EMBARGOED UNTIL RELEASE AT 8:30 A.M. EDT, Wednesday, August 30, 2017
BEA 17—42

* See the navigation bar at the right side of the news release text for links to data tables, contact personnel and their telephone numbers, and supplementary materials.

Lisa Mataloni: (301) 278-9083 (GDP) gdpniwd@bea.gov
Kate Pinard: (301) 278-9417 (Corporate Profits) cpniwd@bea.gov
Jeannine Aversa: (301) 278-9003 (News Media) Jeannine.Aversa@bea.gov
National Income and Product Accounts
Gross Domestic Product: Second Quarter 2017 (Second Estimate)
Corporate Profits: Second Quarter 2017 (Preliminary Estimate)
Real gross domestic product (GDP) increased at an annual rate of 3.0 percent in the second quarter of
2017 (table 1), according to the "second" estimate released by the Bureau of Economic Analysis. In the
first quarter, real GDP increased 1.2 percent.

The GDP estimate released today is based on more complete source data than were available for the
"advance" estimate issued last month.  In the advance estimate, the increase in real GDP was 2.6
percent. With this second estimate for the second quarter, the general picture of economic growth
remains the same; increases in personal consumption expenditures (PCE) and in nonresidential fixed
investment were larger than previously estimated. These increases were partly offset by a larger
decrease in state and local government spending (see "Updates to GDP" below).

Real GDP: Percent Change from Preceding Quarter
Real gross domestic income (GDI) increased 2.9 percent in the second quarter, compared with an
increase of 2.7 percent (revised) in the first. The average of real GDP and real GDI, a supplemental
measure of U.S. economic activity that equally weights GDP and GDI, increased 3.0 percent in the
second quarter, compared with an increase of 2.0 percent in the first quarter (table 1).

The increase in real GDP in the second quarter reflected positive contributions from PCE, nonresidential
fixed investment, exports, federal government spending, and private inventory investment that were
partly offset by negative contributions from residential fixed investment and state and local government
spending. Imports, which are a subtraction in the calculation of GDP, increased (table 2).

The acceleration in real GDP in the second quarter primarily reflected upturns in private inventory
investment and federal government spending and an acceleration in PCE that were partly offset by
downturns in residential fixed investment and state and local government spending and a deceleration
in exports.

Current-dollar GDP increased 4.0 percent, or $189.0 billion, in the second quarter to a level of $19,246.7
billion. In the first quarter, current-dollar GDP increased 3.3 percent, or $152.2 billion (table 1 and table
3).

The price index for gross domestic purchases increased 0.8 percent in the second quarter, compared
with an increase of 2.6 percent in the first quarter (table 4). The PCE price index increased 0.3 percent,
compared with an increase of 2.2 percent. Excluding food and energy prices, the PCE price index
increased 0.9 percent, compared with an increase of 1.8 percent (appendix table A).


Updates to GDP

The percent change in real GDP was revised up from the advance estimate, reflecting upward revisions
to PCE and to nonresidential fixed investment that were partly offset by a downward revision to state
and local government spending. For more information, see the Technical Note. A detailed "Key Source
Data and Assumptions" file is also posted for each release.  For information on updates to GDP, see the
“Additional Information” section that follows.

                                    Advance Estimate        Second Estimate
			           (Percent change from preceding quarter)
Real GDP                                  2.6                  3.0
Current-dollar GDP                        3.6                  4.0
Real GDI                                   …                   2.9
Average of Real GDP and Real GDI           …                   3.0
Gross domestic purchases price index      0.8                  0.8
PCE price index                           0.3                  0.3


For the first quarter of 2017, the percent change in real GDI was revised from 2.6 percent to 2.7 percent
based on revised first-quarter tabulations from the BLS Quarterly Census of Employment and Wages
program.

Corporate Profits (table 12)

Profits from current production (corporate profits with inventory valuation adjustment and capital
consumption adjustment) increased $26.8 billion in the second quarter, in contrast to a decrease of
$46.2 billion in the first quarter.

Profits of domestic financial corporations decreased $29.4 billion in the second quarter, compared with
a decrease of $40.7 billion in the first quarter. Profits of domestic nonfinancial corporations increased
$64.8 billion, compared with an increase of $3.8 billion. The rest-of-the-world component of profits
decreased $8.6 billion, compared with a decrease of $9.3 billion. This measure is calculated as the
difference between receipts from the rest of the world and payments to the rest of the world. In the
second quarter, receipts increased $8.5 billion, and payments increased $17.1 billion.





                                       *          *          *




                           Next release:  September 28, 2017 at 8:30 A.M. EDT
                     Gross Domestic Product:  Second Quarter 2017 (Third Estimate)
                      Corporate Profits:  Second Quarter 2017 (Revised Estimate)




                                       Additional Information

Resources

Additional resources available at www.bea.gov:
•	Stay informed about BEA developments by reading the BEA blog, signing up for BEA’s email
        subscription service, or following BEA on Twitter @BEA_News.
•	Historical time series for these estimates can be accessed in BEA’s Interactive Data Application.
•	Access BEA data by registering for BEA’s Data Application Programming Interface (API).
•	For more on BEA’s statistics, see our monthly online journal, the Survey of Current Business.
•	BEA's news release scheduleNIPA Handbook:  Concepts and Methods of the U.S. National Income and Product Accounts

Definitions

Gross domestic product (GDP) is the value of the goods and services produced by the nation’s economy
less the value of the goods and services used up in production. GDP is also equal to the sum of personal
consumption expenditures, gross private domestic investment, net exports of goods and services, and
government consumption expenditures and gross investment.

Gross domestic income (GDI) is the sum of incomes earned and costs incurred in the production of GDP.
In national economic accounting, GDP and GDI are conceptually equal. In practice, GDP and GDI differ
because they are constructed using largely independent source data. Real GDI is calculated by deflating
gross domestic income using the GDP price index as the deflator, and is therefore conceptually
equivalent to real GDP.

Current-dollar estimates are valued in the prices of the period when the transactions occurred—that is,
at “market value.” Also referred to as “nominal estimates” or as “current-price estimates.”
Real values are inflation-adjusted estimates—that is, estimates that exclude the effects of price changes.
The gross domestic purchases price index measures the prices of final goods and services purchased by
U.S. residents.

The personal consumption expenditure price index measures the prices paid for the goods and services
purchased by, or on the behalf of, “persons.”

Profits from current production, referred to as corporate profits with inventory valuation adjustment
(IVA) and capital consumption adjustment (CCAdj) in the NIPAs, is a measure of the net income of
corporations before deducting income taxes that is consistent with the value of goods and services
measured in GDP. The IVA and CCAdj are adjustments that convert inventory withdrawals and
depreciation of fixed assets reported on a tax-return, historical-cost basis to the current-cost economic
measures used in the national income and product accounts.

For more definitions, see the Glossary: National Income and Product Accounts.


Statistical conventions

Annual rates. Quarterly values are expressed at seasonally-adjusted annual rates (SAAR), unless
otherwise specified. Dollar changes are calculated as the difference between these SAAR values. For
detail, see the FAQ “Why does BEA publish estimates at annual rates?”

Percent changes in quarterly series are calculated from unrounded data and are displayed at annual
rates, unless otherwise specified. For details, see the FAQ “How is average annual growth calculated?”

Quantities and prices. Quantities, or “real” volume measures, and prices are expressed as index
numbers with a specified reference year equal to 100 (currently 2009). Quantity and price indexes are
calculated using a Fisher-chained weighted formula that incorporates weights from two adjacent
periods (quarters for quarterly data and annuals for annual data). “Real” dollar series are calculated by
multiplying the published quantity index by the current dollar value in the reference year (2009) and
then dividing by 100. Percent changes calculated from real quantity indexes and chained-dollar levels
are conceptually the same; any differences are due to rounding.

Chained-dollar values are not additive because the relative weights for a given period differ from those
of the reference year. In tables that display chained-dollar values, a “residual” line shows the difference
between the sum of detailed chained-dollar series and its corresponding aggregate.


Updates to GDP

BEA releases three vintages of the current quarterly estimate for GDP:  "Advance" estimates are
released near the end of the first month following the end of the quarter and are based on source data
that are incomplete or subject to further revision by the source agency; “second” and “third” estimates
are released near the end of the second and third months, respectively, and are based on more detailed
and more comprehensive data as they become available.

Annual and comprehensive updates are typically released in late July. Annual updates generally cover at
least the 3 most recent calendar years (and their associated quarters) and incorporate newly available
major annual source data as well as some changes in methods and definitions to improve the accounts.
Comprehensive (or benchmark) updates are carried out at about 5-year intervals and incorporate major
periodic source data, as well as major conceptual improvements.
The table below shows the average revisions to the quarterly percent changes in real GDP between
different estimate vintages, without regard to sign.

Vintage                               Average Revision Without Regard to Sign
                                         (percentage points, annual rates)
Advance to second                                     0.5
Advance to third                                      0.6
Second to third                                       0.2
Advance to latest                                     1.1
Note - Based on estimates from 1993 through 2015. For more information on GDP
updates, see Revision Information on the BEA Web site.

The larger average revision from the advance to the latest estimate reflects the fact that periodic
comprehensive updates include major statistical and methodological improvements.

Unlike GDP, an advance current quarterly estimate of GDI is not released because data on domestic
profits and on net interest of domestic industries are not available. For fourth quarter estimates, these
data are not available until the third estimate.

https://www.bea.gov/newsreleases/national/gdp/2017/gdp2q17_2nd.htm

 

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The Pronk Pops Show 939, August 2, 2017, Breaking News — Story 1: President Trump For National Unity Furiously Signs Flawed Russia, Iran, and North Korea Sanctions Bill — Videos — Story 2: Trump Announces New Immigration Policy — Reforming American Immigration for Strong Employment (RAISE) Act — Videos

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Image result for trump for Reforming American Immigration for Strong Employment (RAISE) Act

Image result for RAISE ACT immigration

Image result for Reforming American Immigration for a Strong Economy (RAISE) Act. charts on numbers 

Breaking News — Story 1: President Trump For National Unity Furiously Signs Flawed Russia, Iran, and North Korea Sanctions Bill — Videos —

President Trump signs Russian sanctions bill Fox News Video

President Trump signs new Russia sanctions, questions whether bill interferes with foreign policy 

BREAKING NEWS 8/2/17 PRESIDENT TRUMP SIGNS NEW RUSSIA SANCTIONS BILL

January 3, 2017: Sen. Tom Cotton joined Tucker Carlson Tonight on Fox News

Trump Signs Sanctions Bill – Another Deep State Victory

Real Bipartisanship: Republicans And Democrats Unite For New Cold War

Germany growing sick of US sanctions on Russia

Russians See Sanctions Regime as a Blessing in Disguise

Trump signs Russia sanctions bill but blasts Congress

In a pair of statements, the president said parts of the law violate the Constitution.

President Donald Trump on Wednesday signed a bipartisan bill placing new sanctions on Russia — but in a statement, he claimed multiple aspects of the legislation violate the Constitution.

The sanctions, aimed at punishing Russia for its interference in the 2016 election, limit the president’s power to lift the sanctions without congressional approval and were initially resisted by the administration.

In one of two statements released almost simultaneously Wednesday morning by the White House, Trump said he supports the law’s efforts to crack down on the actions of Iran, North Korea and Russia. But the White House protested what it sees as congressional encroachment on the president’s power in foreign affairs.

“In its haste to pass this legislation, the Congress included a number of clearly unconstitutional provisions,” Trump said in one statement. “My Administration particularly expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies.”

The president’s second statement included a stepped-up defense of his own administration’s foreign policy and input on the legislation. Trump said that “despite its problems,” he had signed the bill “for the sake of national unity.” The statement characterized the governments of Iran and North Korea as “rogue regimes,” a label he did not apply to the Russian government.

Even as he continues to label Russian interference in the election a “hoax,” the statement went further in acknowledging the intrusion than Trump has in the past.

“I also support making clear that America will not tolerate interference in our democratic process, and that we will side with our allies and friends against Russian subversion and destabilization,” the statement said.

Still, Trump was quick to push back on what he views as congressional overreach.

“The bill remains seriously flawed — particularly because it encroaches on the executive branch’s authority to negotiate. Congress could not even negotiate a health care bill after seven years of talking,” Trump said, in reference to congressional Republicans’ latest failure to repeal and replace the Affordable Care Act.

“I built a truly great company worth many billions of dollars. That is a big part of the reason I was elected,” the president continued. “As President, I can make far better deals with foreign countries than Congress.”

The statements drew mixed reaction on Capitol Hill.

Senate Foreign Relations Chairman Bob Corker, a leading architect of the sanctions bill, told reporters he was not concerned about Trump’s statement, though he said he had not yet seen it.

“Both countries talk privately in ways that are very different from how they talk publicly,” the Tennessee Republican said of U.S.-Russia relations. “But this was a necessary step that we took, and I’m glad we took it.”

In addition to allowing lawmakers to handcuff Trump on any future changes to Russia sanctions, the legislation converts some existing sanctions from executive orders into law, making them more difficult to roll back, and imposes new sanctions focused on Moscow’s reported cyber-meddling in the November election. The legislation’s Iran and North Korea sanctions were broadly popular in both parties and with the Trump administration.

Although White House officials asserted that some of the preferred changes to the legislation were included before its final passage last week, the administration had long underscored its opposition to provisions that will impede Trump’s ability to warm relations with Russian President Vladimir Putin.

“The action by the Congress to put these sanctions in place and the way that they did, neither the president nor I are very happy about that,” Secretary of State Rex Tillerson told reporters Tuesday. “We were clear that we didn’t think it was going to be helpful to our efforts.”

Still, Tillerson added, “we can’t let it take us off track of trying to restore the relationship” with Russia.

Even as Trump criticized the measure, he added that “I nevertheless expect to honor the bill’s waiting periods to ensure that Congress will have a full opportunity to avail itself of the bill’s review procedures.”

That apparent concession by Trump did not assuage Democratic concerns about his signing statement. House Minority Leader Nancy Pelosi of California warned in a statement that Trump’s interpretation of the sanctions bill “raises serious questions about whether his administration intends to follow the law, or whether he will continue to enable and reward Vladimir Putin’s aggression.”

And some Republicans who played a key role in the sanctions package raised their own alarms.

“Look, whether it was President Bush, President Obama, or President Trump, I’ve never been a fan of signing statements,” said Sen. Cory Gardner of Colorado. “I think they’re a way for any president to usurp the role of the legislative branch. And that’s why I’ve always been concerned, regardless of who issued them, on any matter.”

The bill enjoyed wide bipartisan support. The House passed the sanctions by a vote of 419-3, and the Senate cleared it 98-2 — making any presidential veto futile and sure to be overridden.

With multiple investigations into whether the Trump campaign colluded with Russia, a veto also would have been politically disastrous.

After weeks of waffling, the White House confirmed over the weekend that Trump would sign the bill.

The White House still sought to characterize the bill as a win, with press secretary Sarah Huckabee Sanders saying in a statement on Friday that Trump “negotiated regarding critical elements of it” and decided to sign it “based on its responsiveness to his negotiations.”

The statement Wednesday also contained a warning — not to Russia, but to Congress.

“The Framers of our Constitution put foreign affairs in the hands of the President,” Trump said. “This bill will prove the wisdom of that choice.”

http://www.politico.com/story/2017/08/02/trump-signs-bipartisan-russia-sanctions-bill-241242

 

Furious Trump signs Russian sanctions into law – then issues tirade against ‘unconstitutional’ bill and boasts his billions show why Congress shouldn’t stop him making deals with Putin

  • President Donald Trump signed legislation imposing new sanctions on Russia, North Korea, and Iran
  • The White House did not organize a ceremony of any kind for it
  • Trump said in a statement he signed the bill for the sake of ‘national unity’ 
  • The White House lobbied to water down restrictions in the bill
  • It passed Congress overwhelmingly with veto-proof majorities
  • Secretary of State Rex Tillerson said he and the president were not ‘very happy’ about the sanctions bill 

President Donald Trump signed legislation Wednesday that slaps sanctions on Russia and limits his own ability to create waivers – but at the same time issued a furious statement calling it ‘flawed’.

He signed the bill, which Secretary of State Rex Tillerson publicly said he wasn’t happy about, in private.

Then the White House sent out statement by the president revealing the depths of his unhappiness and boasting that his billions showed he was far better at deal-making than Congress.

Trump said despite some changes, ‘the bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate.’

He called parts of it ‘unconstitutional’ and signaled fresh tensions with Republicans by criticizing their failure to repeal and replace Obamacare.

President Donald Trump has signed legislation that slaps sanctions on Russia and limits his own ability to create waivers

‘Congress could not even negotiate a healthcare bill after seven years of talking. By limiting the Executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together.

‘The Framers of our Constitution put foreign affairs in the hands of the President. This bill will prove the wisdom of that choice,’ Trump said in a statement.

‘Yet despite its problems, I am signing this bill for the sake of national unity. It represents the will of the American people to see Russia take steps to improve relations with the United States. We hope there will be cooperation between our two countries on major global issues so that these sanctions will no longer be necessary.’

In a message to Congress in response to the bill, Trump singled out provisions his lawyers considers in conflict with Supreme Court case law – and asserts his own latitude to carry out the law as he sees fit.

Secretary of State Rex Tillerson said Trump wasn't happy with the bill

Secretary of State Rex Tillerson said Trump wasn’t happy with the bill

‘My Administration will give careful and respectful consideration to the preferences expressed by the Congress in these various provisions,’ the president said in one point – in language certain to irk lawmakers who consider the law much more than a preference.

‘My administration … expects the Congress to refrain from using this flawed bill to hinder our important work with European allies to resolve the conflict in Ukraine, and from using it to hinder our efforts to address any unintended consequences it may have for American businesses, our friends, or our allies,’ he said.

The president also complained about what he said were ‘clearly unconstitutional provisions’ in the legislation relating to presidential powers to shape foreign policy.

 White House counselor Kellyanne Conway confirmed the signing on Fox News.

The bill passed Congress by overwhelming margins sufficient to override a presidential veto. The White House lobbied to water down restrictions in the bill.

The bill contains language meant to prevent the president from lifting them without approval from Congress – provisions that got drafted amid concerns Trump would lift or limit sanctions amid his frequent praise for Russian President Vladimir Putin and desire to improve ties between the two powers.

Secretary of State Rex Tillerson told reporters he shared misgivings with the president, as they try to improve relations with Russia.

‘Neither the president nor I are very happy about that,’ Tillerson said. ‘We were clear that we didn’t think that was going to be helpful to our efforts, but that’s the decision they made.’

The FBI and congressional intelligence panels are probing Trump campaign connections to Russians during the election.

SIGN OF THE TIMES: Russian President Vladimir Putin speaks during a news conference after the G20 summit in Hamburg, northern Germany, July 8, 2017

SIGN OF THE TIMES: Russian President Vladimir Putin speaks during a news conference after the G20 summit in Hamburg, northern Germany, July 8, 2017

Then-candidate Donald Trump holds up a signed pledge during a press availability at Trump Tower in Manhattan, New York September 3, 2015

Then-candidate Donald Trump holds up a signed pledge during a press availability at Trump Tower in Manhattan, New York September 3, 2015

Justice Department lawyers and security officials were reviewing Russia sanctions legislation Tuesday

Justice Department lawyers and security officials were reviewing Russia sanctions legislation Tuesday

Trump during the campaign repeatedly called for better relations with Russia. The U.S. intelligence community concluded that the Russian government backed a campaign to interfere in the presidential election.

Despite communications with Russian President Vladimir Putin capped off by two one-on-one meetings in Europe, Trump has struggled to meet his goal.

Putin said last weekend that Russia would expel more than 700 U.S. diplomats from Russia in retaliation for the sanctions legislation.

I’M WORTH BILLIONS – I CAN MAKE BETTER DEALS THAN CONGRESS

Today, I signed into law the ‘Countering America’s Adversaries Through Sanctions Act,’ which enacts new sanctions on Iran, North Korea, and Russia. I favor tough measures to punish and deter bad behavior by the rogue regimes in Tehran and Pyongyang. I also support making clear that America will not tolerate interference in our democratic process, and that we will side with our allies and friends against Russian subversion and destabilization.

That is why, since taking office, I have enacted tough new sanctions on Iran and North Korea, and shored up existing sanctions on Russia.

Since this bill was first introduced, I have expressed my concerns to Congress about the many ways it improperly encroaches on Executive power, disadvantages American companies, and hurts the interests of our European allies.

My Administration has attempted to work with Congress to make this bill better. We have made progress and improved the language to give the Treasury Department greater flexibility in granting routine licenses to American businesses, people, and companies. The improved language also reflects feedback from our European allies – who have been steadfast partners on Russia sanctions – regarding the energy sanctions provided for in the legislation. The new language also ensures our agencies can delay sanctions on the intelligence and defense sectors, because those sanctions could negatively affect American companies and those of our allies.

Still, the bill remains seriously flawed – particularly because it encroaches on the executive branch’s authority to negotiate. Congress could not even negotiate a healthcare bill after seven years of talking. By limiting the Executive’s flexibility, this bill makes it harder for the United States to strike good deals for the American people, and will drive China, Russia, and North Korea much closer together. The Framers of our Constitution put foreign affairs in the hands of the President. This bill will prove the wisdom of that choice.

Yet despite its problems, I am signing this bill for the sake of national unity. It represents the will of the American people to see Russia take steps to improve relations with the United States. We hope there will be cooperation between our two countries on major global issues so that these sanctions will no longer be necessary.

Further, the bill sends a clear message to Iran and North Korea that the American people will not tolerate their dangerous and destabilizing behavior. America will continue to work closely with our friends and allies to check those countries’ malignant activities.

I built a truly great company worth many billions of dollars. That is a big part of the reason I was elected. As President, I can make far better deals with foreign countries than Congress.

In his statement about the bill, Trump highlighted a series of concerns about the legislation. Had he vetoed it, Congress could have easily overridden him.

‘Since this bill was first introduced, I have expressed my concerns to Congress about the many ways it improperly encroaches on Executive power, disadvantages American companies, and hurts the interests of our European allies,’ Trump complained.

‘My Administration has attempted to work with Congress to make this bill better. We have made progress and improved the language to give the Treasury Department greater flexibility in granting routine licenses to American businesses, people, and companies. The improved language also reflects feedback from our European allies – who have been steadfast partners on Russia sanctions – regarding the energy sanctions provided for in the legislation. The new language also ensures our agencies can delay sanctions on the intelligence and defense sectors, because those sanctions could negatively affect American companies and those of our allies.’

 Russia hawk Sen. John McCain of Arizona responded in a statement: ‘I welcome President Trump’s decision to sign legislation imposing new sanctions on Russia, Iran, and North Korea. The enactment of this legislation, which enjoyed overwhelming bipartisan support in both houses of Congress, sends a strong message to friend and foe alike that the United States will hold nations accountable for aggressive and destabilizing behavior that threatens our national interests and those of our allies and partners.’

McCain also called out Trump’s signing statement. ‘The concerns expressed in the President’s signing statement are hardly surprising, though misplaced. The Framers of our Constitution made the Congress and the President coequal branches of government. This bill has already proven the wisdom of that choice,’ he wrote.

“While the American people surely hope for better relations with Russia, what this legislation truly represents is their insistence that Vladimir Putin and his regime must pay a real price for attacking our democracy, violating human rights, occupying Crimea, and destabilizing Ukraine.’

http://www.dailymail.co.uk/news/article-4754014/President-Donald-Trump-signs-Russia-sanctions-bill.html#ixzz4ocylqTKe

 

President Vladimir V. Putin of Russia met with President Trump for the first time during the Group of 20 summit meeting in Hamburg, Germany, this month. CreditStephen Crowley/The New York Times

MOSCOW — The last time the Kremlin forced a sweeping reduction of local staff at the American Embassy in Moscow, a young diplomat named Steven Pifer found himself working four days a week on arms control, as usual. But on the fifth day, he navigated the capital in a big truck to move furniture or haul mammoth grocery loads.

The entire staff of the embassy, except the ambassador, was assigned one day each week to grunt work called All Purpose Duty, Mr. Pifer recalled in an interview on Monday, when they shed their dark suits and polished loafers to mow the lawns, fix the plumbing, cook in the cafeteria and even clean the toilets.

That was a last hurrah for the Cold War in 1986, and although the embassy now functions on a far more complex scale, many current and former diplomats expect a similar effort in the wake of President Vladimir V. Putin’s announcement on Sunday that the United States diplomatic mission in Russia must shed 755 employees by Sept. 1.

“The attitude in the embassy was if they think that they will shut us down, we will show them,” said Mr. Pifer, who went on to become an American ambassador to Ukraine and is now a senior fellow at the Brookings Institution in Washington. “I think the embassy will adapt this time, too.”

Russia demanded that the United States reduce its diplomatic staff to equal the 455 Russian diplomats working in the United States, including at the mission to the United Nations. That means cutting about 60 percent of a work force estimated at 1,200 to 1,300 people, the vast majority of whom are Russians.

Given the continuing deterioration in relations between the two countries, core functions like political and military analysis will be preserved, along with espionage, experts said, while programs that involve cooperation on everything from trade to culture to science are likely to be reduced or eliminated.

Besides the State Department, a dizzying array of American government agencies have employees at the embassy, including the Departments of Agriculture and Commerce as well as NASA and the Library of Congress.

The other area expected to take a heavy hit will be public services, like issuing visas to Russian travelers to the United States, which is likely to slow to a glacial pace.

The Russian staff can be broken down into two broad categories: specialists who help individual departments in the embassy like public relations, and basic service workers employed as security guards, drivers, janitors, electricians and a host of other maintenance functions.

As of 2013, the latest year for which public records are available, there were 1,279 staff members working in the American Embassy in Moscow and in consulates in St. Petersburg, Yekaterinburg and Vladivostok, according to a report by the Inspector General’s Office. Of those, 934 were not Americans, including 652 basic service workers. The numbers are believed to have stayed roughly the same.

Russian staff members working in various departments like the political or economic section often provide the embassy’s institutional memory, because they stay on the job for years while American diplomats rotate every two or three years. (If the Russian employees stay for at least 15 years, they are eligible for special immigration visas to the United States and their salaries are high by Russian standards.)

It is the Russians who tend to notice nuances in domestic news coverage or in Mr. Putin’s speeches, or who direct diplomats toward public events or responsible journalists. The Russian employees provide continuity, an American diplomat who recently left Moscow said, speaking anonymously because he was not authorized to speak publicly.

Gen. Bruce McClintock, the American Defense attaché from 2014 to 2016 and now a RAND Corporation analyst, said Russian employees were often more effective in organizing meetings with government officials, while experienced translators ensured that the positions of both sides were clear in often complex discussions.

Russia had already chipped away at embassy programs, anyway, he noted. In 2013, it shuttered USAID, for example, and in 2014, in response to the West’s cutting off military cooperation after the Ukraine crisis, it closed the Defense Threat Reduction Agency.

Although the work continued, it was much harder to coordinate because its 10 employees had departed, said General McClintock.

Russian nationals are not given the security clearances needed to work in the more clandestine branches of the embassy. Indeed, in the chancellery itself, no Russians worked above the fourth floor in the roughly 10-story building, former Russian employees said.

The American Embassy, which held a staff meeting on Monday to confirm the news to its employees, refused to comment on the events, while in Washington the State Department would say only that it was studying the Russian government’s request.

The general hostility toward the United States means Moscow was already considered a hardship post for American diplomats, and the new measures will lower morale further, diplomats said.

Russian employees are confused and do not yet understand how the changes will be carried out, a former Russian employee now working outside the country said, adding with dark humor that Stalin used to say there were no irreplaceable people.

Russian employees who worked for specialized departments feel especially vulnerable because they carry a certain stigma in Russia’s current nationalistic mood. Michael McFaul, a Stanford University professor who was the American ambassador from 2012 to 2014, remembered trying to help find work for 70 Russians who were let go when the Kremlin closed the USAID office.

It was especially hard because “many Russian companies would not consider hiring these ‘tainted’ people,” he said in an email.

In recent years, local employees have come under increasing pressure from the Russian security service, the F.S.B., according to current and former employees. Russians escorting delegations of American musicians around the country were harassed, for example, or some in Moscow returned home from work to find agents sitting in their living rooms, demanding that they inform on their employers, they said.

Mr. Pifer said American diplomats who lived through the 1986 clampdown learned all kinds of things about Soviet life that they would not have otherwise.

One of his colleagues, who had to navigate customs, wrote a slightly tongue-in-cheek diplomatic cable titled “The 29 Steps Needed to Clear a Container of Furniture,” detailing every stamp issued on every piece of paper. The cable was a huge hit back in Washington, he said.

In previous spats with the United States or the West in general, Mr. Putin often chose measures that hurt Russians the most, not least because Russia’s limited economic reach globally means it does not have many options.

Angered over sanctions imposed by Congress under the Magnitsky Act in 2012, he banned Americans from adopting Russian children. When the West imposed economic and military sanctions after the Russian annexation of Crimea in 2014, he barred a broad array of food imports, forcing up prices and limiting the options for Russian consumers.

This time, hundreds of Russians will lose their jobs and Russian travelers hoping to visit the United States are likely to wait months for visas. Some 50 Russians were employed in the consular section that processes visas, according to the inspector general’s report.

“I don’t think Mr. Putin is terribly worried about this,” Mr. Collins said, noting the presidential election looming in March. “As he is running for election, it is comfortable for him to show that he can stand up to the Americans and to protect Russian interests and that is what he is doing.”

Outside the embassy on Monday, many of those emerging from the visa section suggested the Russian measures could only make a bad situation worse. Anecdotal evidence suggested that on both sides, what used to take weeks had already slowed to months.

Shavkat Butaev, 50, who works for a company that helps Russians get visas, said rejections were way up, too. “It was never like this before. Fifty, 60 people get rejected every day,” he said.

Oleg Smirnov, an 18-year-old student studying in the United States to become a psychiatrist, said that he had hoped President Trump would improve relations and that he was worried about possible fallout on immigration policy.

“These mutual sanctions look like a game played with water guns,” he said

https://www.nytimes.com/2017/07/31/world/europe/russia-sanctions-embassy.html

Story 2: Trump Announces New Immigration Policy — Reforming American Immigration for Strong Employment (RAISE) Act — Videos

Trump announces new immigration policy

Published on Aug 2, 2017

President Trump announced the Reforming American Immigration for Strong Employment (RAISE) Act on Aug. 2, which aims to cut immigration by half from the current level of more than 1 million green cards granted per year.

 

Pres Trump and Sens Cotton and Perdue Introduce “The Raise Act”. Excellent!

August 2, 2017: Sen. Cotton and Sen. Perdue Answer Questions about the RAISE Act at the White House

 

Jim Acosta vs Stephen Miller – Immigration – White House Press Briefing 8/2/17

Senator Tom Cotton, Immigration Reform, and the RAISE Act

Senators David Perdue and Tom Cotton RAISE Act Press Conference

Immigration by the Numbers — Off the Charts

Sen.Barbara Jordan Legal Immigration Recommendations

2015 Barbara Jordan TV ad

How Many Illegal Aliens Are in the US? – Walsh – 1

How Many Illegal Aliens Are in the US? – Walsh – 2

Milton Friedman – Illegal Immigration – PT 1

Milton Friedman – Illegal Immigration – PT 2

Why Free Markets Work: Milton Friedman on Political Economy (1996)

Obama’s Amnesty & How Illegal Immigration Affects Us

The Impact of Immigration on Jobs and Income

 

Trump, GOP senators unveil measure to cut legal immigration

Trump, GOP senators unveil measure to cut legal immigration

President Trump on Wednesday teamed up with two conservative Republican senators to roll out new legislation aimed at dramatically curbing legal immigration to the United States, a key Trump campaign promise.

Sens. Tom Cotton (R-Ark.) and David Perdue (R-Ga.) have been working with White House officials to revise and expand a bill released earlier this year that would halve the number of people who receive legal permanent residence over a decade.

The senators joined Trump at a White House ceremony to announce the measure.

The president told reporters in the Roosevelt Room that the measure “would represent the most significant reform to our immigration system in a half a century.”
They say the legislation would move the United States to a “merit-based” immigration system and away from the current model, which is largely based on family ties.
The measure reflects Trump’s rhetoric during the 2016 campaign, when he argued that the spike in legal immigration over the past several decades has taken job opportunities away from American citizens and threatened national security.
“As a candidate, I campaigned on creating a merit-based immigration system that protects U.S. workers and taxpayers and that’s why we are here today,” he said, adding the measure would “reduce poverty, increase wages and save taxpayers billions and billions of dollars.”
Trump met with Cotton and Perdue in March to discuss the legislation, known as the Reforming American Immigration for a Strong Economy (RAISE) Act.
The bill would mark a dramatic change in U.S. immigration laws, and could open up a nasty internal fight among Republicans.

The legislation would eliminate immigration preferences currently given to extended family members and adult children of U.S. citizens seeking green cards, and it would cap the number of accepted refugees at 50,000 — half of the Obama administration’s target for 2017.

It would also end the State Department’s Diversity visa lottery, which the senators say is “plagued with fraud.” The program had been allotted 50,000 visas for the 2018 fiscal year.

About 1 million immigrants receive green cards per year.

Conservative outside groups immediately praised the legislation and called for the Senate to vote on the bill.

“The RAISE Act helps realize President Trump’s vision of making America great again by making immigration great again as well. It provides a pathway for a modern, smarter immigration system while protecting those Americans struggling to make ends meet,” said Dan Stein, president of Federation for American Immigration Reform.

Roy Beck, president of NumbersUSA, added that the Cotton-Perdue bill will “do more than any other action to fulfill” Trump’s campaign pledges on immigration.

The legislation faces an uphill battle in the Senate, however, where it’s expected to get pushback from Democrats as well as GOP senators who oppose strict limits on legal immigration and want a broader reform effort that would address the roughly 11 million undocumented immigrants living in the U.S.

If Cotton and Perdue can get GOP leadership to bring the legislation up for a vote, supporters will need to cobble together 60 senators, including at least eight Democrats or independents, to agree to start debate on the legislation.

Sen. Lindsey Graham (R-S.C.) and a handful of Republicans — including GOP Sens. Jeff Flake (Ariz.), Lisa Murkowski (Alaska) and Dean Heller (Nev.) — have been working on bills this year to allow undocumented immigrants who entered the country as children to, at least temporarily, remain in the country legally.

Hundreds of thousands of undocumented immigrants have been granted temporary reprieves from deportation under the Obama-era Deferred Action for Childhood Arrivals program. But it does not confer legal status on immigrants.

Cotton and Perdue would need to win over their votes, as well as Sen. John McCain. The Arizona Republican, who is currently undergoing cancer treatment, was critical of their earlier bill.

The White House roll out could give the legislation a boost of momentum, but the earlier version of the Cotton-Perdue bill garnered zero cosponsors.

Critics of the measure say it would devastate families’ effort to reunite with their overseas relatives while providing few economic benefits.

“If this is an acknowledgement that our immigration system is broken, the Trump administration and these senators are right, but this is the wrong way to fix it,” said Ali Noorani, executive director of the National Immigration Forum. “Cutting legal immigration for the sake of cutting immigration would cause irreparable harm to the American worker and their family.”

“Congress should focus on stopping illegal immigration – not on restricting the legal immigration that grows our economy,” said John Feinblatt, president of the former New York City Mayor Michael Bloomberg-backed group New American Economy.

http://thehill.com/homenews/administration/344924-trump-gop-senators-unveil-measure-to-cut-legal-immigration

Sen. Cotton Officially Introduces RAISE Act

PUBLISHED:

Thu, FEB 16th 2017 @ 9:40am EST

Sen. Tom Cotton (R-Ark.) has officially introduced the Reforming American Immigration for Strong Employment (RAISE) Act, S. 354, in the Senate. The bill would reduce legal immigration by up to 50% by ending future chain migration and the diversity visa lottery.

Roy Beck, President and Founder of NumbersUSA responded saying, “the RAISE Act has a number — S. 354 — and one that we will do all possible to ensure that lives on through history as one of the great achievements of this period of our country.”

The RAISE Act would:

  • End the Visa Lottery
  • Limit annual refugee admissions to 50,000
  • End chain migration
  • Reduce the worldwide level of family-sponsored immigrants from 480,000 to 88,000 by prioritizing nuclear family
  • Add a nonimmigrant visa for parents of adult U.S. citizens (W-Visa)
    • 5-year renewable visa
    • No work authorization or ability to receive public benefits

The RAISE Act would reduce legal immigration to the United States by 50% in an effort to diminish its impact on vulnerable American workers. First, it eliminates the visa lottery and limits refugee admissions to 50,000 per year, removing the ability of the President to unilaterally adjust upward refugee admissions. Further, it eliminates chain migration by limiting family-sponsored immigration to the spouses and minor children of U.S. citizens and legal permanent residents.

While U.S. citizens maintain the ability to sponsor nuclear family members without numerical limitation, the worldwide level of family-sponsored immigration is reduced from 480,000 to 88,000 to account for the elimination of the extended-family categories. Finally, a new nonimmigrant visa category is created for parents of adult U.S. citizens. Under this new category, sponsored alien parents would receive a renewable 5-year visa, but must be financially independent or supported financially by the adult son or daughter, as the visa does not authorize the alien to work or receive any form of public benefit.

https://www.numbersusa.com/news/sen-cotton-officially-introduces-raise-act

 

 

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The Pronk Pops Show 906, June 7, 2017, Story 1: Will Congress Reauthorize Section 702 Foreign Intelligence Surveillance Act? Yes with changes to protect the privacy of American People. — How About Executive Order 12333 That Allow The President To Target Americans Without A Warrant — Unconstitutional and Illegal — Happens Every Day! — Oversight My Ass –Videos — Story 2: National Security Agency Under Obama Spied On American People —  Obama’s Abuse of Power — Huge Scandal Ignored By Big Lie Media — Videos — Story 3: President Trump To Nominate Christopher A. Wray For FBI Director — Videos

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Pronk Pops Show 890,  May 10, 2017

Pronk Pops Show 889,  May 9, 2017

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Story 1: Will Congress Reauthorize Section 702 Foreign Intelligence Surveillance Act? Yes with changes to protect the privacy of American People — How About Executive Order 12333 That Allows The President To Target American Citizens Without A Warrant — Unconstitutional and Illegal — Happens Every Day! — Oversight My Ass –Videos

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FISA: 702 Collection

In 2008, Congress passed a set of updates to the Foreign Intelligence Surveillance Act (FISA), including Section 702 which authorized warrantless surveillance of non-U.S. persons reasonably believed to be outside the country. However, documents leaked by Edward Snowden revealed that 702 was being used far more heavily than many expected, serving as the legal basis for the collection of large quantities of telephone and Internet traffic  passing through the United States (and unlike 215, including content rather than just metadata). Still, as 702 only permits overseas collection, most criticism of the provision has come from abroad. But many domestic privacy advocates also worry that large amounts of American communication are being swept up “incidentally” and then used as well.

How the Senate hearing on surveillance turned into a Russia hearing

Blunt Questions National Security Officials Regarding Russia Investigation & FISA 6/7/17

FULL: Rosenstein, Intel Chiefs Testify at Senate Hearing on President Trump and Russia Investigation

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Senator Kamala Harris Grills Deputy AG Rosenstein On Whether He Has Given Mueller Full Independence

Trump Russia Collusion Investigation, Part 1 – Senate Intelligence Committee – FISA 6/7/2017

Trump Russia Collusion Investigation, Part 2 – Senate Intelligence Committee – FISA 6/7/2017

Trump Russia Collusion Investigation, Part 3 – Senate Intelligence Committee – FISA 6/7/2017

‘You Went Back on a Pledge!’ Dem. Senator Gets Nasty With DNI Chief Dan Coats

June 7, 2017: Sen. Cotton’s Q&A at Senate Intel Committee FISA Hearing

OPENING STATEMENT: Director of National Intelligence Dan Coats Testifies at Senate Intel Committee

Senate Russia Investigation: National security officials testify to intelligence committee on FISA

Rand Paul on Unmaskings: ‘We Can’t Live in Fear of Our Own Intelligence Community’

Rand Paul on Obama Illegally Spying on Americans | NSA Wiretapping

Section 702 of the FISA Amendments Act

FISA Hearing – Sec 702 Intel Surveillance – IMPORTANT

NSA Spying On Americans ‘Widespread’ – Let Sec. 702 Expire!

Bill Binney explodes the Russia witchhunt

Obama’s NSA conducted illegal searches on Americans for years: Report

NSA Whistleblower Bill Binney on Tucker Carlson 03.24.2017

NSA Whistleblower Bill Binney On 9/11

William Binney – The Government is Profiling You (The NSA is Spying on You)

NSA Whistleblower William Binney: The Future of FREEDOM

State of Surveillance: Police, Privacy and Technology

The Fourth Amendment Explained: US Government Review

Why We’re Losing Liberty

Sen. Rand Paul Defends the Fourth Amendment – February 11, 2014

Rand Paul Shames Homeland Security on Spying on Americans

Top Intel Community Officials Deny That Trump Pressured Them On Russia Probe

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CHUCK ROSS
Reporter

The directors of the Office of National Intelligence and the National Security Agency testified on Wednesday that they have not been pressured by President Trump on the ongoing Russia investigation, undercutting recent reports that they were.

Dan Coats, the director of national intelligence, and Adm. Mike Rogers, the director of NSA, largely declined to discuss details about their interactions with Trump when pressed on the matter during a Senate Intelligence Committee hearing.

According to news reports published last month, Trump asked both Coats and Rogers to rebut stories that Trump was under investigation as part of the Russia probe.

Both Coats and Rogers reportedly felt uncomfortable with the requests from Trump.

But when asked about those interactions on Wednesday, both declined to discuss their specific conversations with Trump while stating that they have never felt pressure from the White House.

“In the three-plus years that I have been the director of the National Security Agency, to the best of my recollection, I have never been directed to do anything that I believe to be illegal, immoral, unethical or inappropriate. And to the best of my collection … I do not recall ever feeling pressured to do so,” Rogers told Virginia Sen. Mark Warner, the vice chairman of the Senate panel.

“Did the president … ask you in any way, shape or form to back off or downplay the Russia investigation?” Warner asked.

Rogers said that he would not discuss specifics of conversations he had with Trump, but added: “I stand by the comment I just made, sir.”

Coats, a former Indiana senator who was appointed by Trump, also denied ever being pressured to downplay the Russia investigation or any other.

On Tuesday, The Washington Post reported that Coats told associates on March 22 that Trump asked him to intervene with former FBI Director James Comey to push back against the Russia investigation.

“In my time of service … I have never been pressured, I have never felt pressure, to intervene or interfere in any way, with shaping intelligence in a political way or in relationship to an ongoing investigation,” Coats testified Wednesday.

http://dailycaller.com/2017/06/07/top-intel-community-officials-deny-that-trump-pressured-them-on-russia-probe/

The Way the NSA Uses Section 702 is Deeply Troubling. Here’s Why.

MAY 7, 2014

This blog post was updated at 5:10 pm PST 5/8/14.

The most recent disclosure of classified NSA documents revealed that the British spy agency GCHQ sought unfettered access to NSA data collected under Section 702 of the FISA Amendments Act. Not only does this reveal that the two agencies have a far closer relationship than GCHQ would like to publicly admit, it also serves as a reminder that surveillance under Section 702 is a real problem that has barely been discussed, much less addressed, by Congress or the President.

In fact, the “manager’s amendment” to the USA FREEDOM Act, which passed unanimously out of the House Judiciary Committee, has weakened the minimal changes to Section 702 that USA FREEDOM originally offered. Although Representative Zoe Lofgren—who clearly understands the import of Section 702—offered several very good amendments that would have addressed these gaps, her amendments were all voted down. There’s still a chance though—as this bill moves through Congress it can be strengthened by amendments from the floor.

Section 702 has been used by the NSA to justify mass collection of phone calls and emails by collecting huge quantities of data directly from the physical infrastructure of communications providers. Here’s what you should know about the provision and why it needs to be addressed by Congress and the President:

  • Most of the discussion around the NSA has focused on the phone records surveillance program. Unlike that program, collection done under Section 702 capturescontent of communications. This could include content in emails, instant messages, Facebook messages, web browsing history, and more.
  • Even though it’s ostensibly used for foreign targets, Section 702 surveillance sweeps up the communications of Americans. The NSA has a twisted, and incredibly permissive, interpretation of targeting that includes communications about a target, even if the communicating parties are completely innocent. As John Oliver put it in his interview with former NSA General Keith Alexander: “No, the target is not the American people, but it seems that too often you miss the target and hit the person next to them going, ‘Whoa, him!'”
  • The NSA has confirmed that it is searching Section 702 data to access American’s communications without a warrant, in what is being called the “back door search loophole.”  In response to questions from Senator Ron Wyden, former NSA director General Keith Alexander admitted that the NSA specifically searches Section 702 data using “U.S. person identifiers,” for example email addresses associated with someone in the U.S.
  • The NSA has used Section 702 to justify programs in which the NSA can siphon off large portions of Internet traffic directly from the Internet backbone. These programs exploit the structure of the Internet, in which a significant amount of traffic from around the world flows through servers in the United States. In fact, through Section 702, the NSA has access to information stored by major Internet companies like Facebook and Google.
  • Section 702 is likely used for computer security operations. Director of National Intelligence James Clapper noted Section 702’s use to obtain communications “regarding potential cyber threats” and to prevent “hostile cyber activities.” Richard Ledgett, Deputy Director of NSA, noted the use of intelligence authorities to mitigate cyber attacks.
  • The FISA Court has little opportunity to review Section 702 collection. The court approves procedures for 702 collection for up to a year. This is not approval of specific targets, however; “court review [is] limited to ‘procedures’ for targeting and minimization rather than the actual seizure and searches.” This lack of judicial oversight is far beyond the parameters of criminal justice.
  • Not only does the FISA Court provide little oversight, Congress is largely in the dark about Section 702 collection as well. NSA spying defenders say that Congress has been briefed on these programs. But other members of Congress have repeatedly noted that it is incredibly difficult to get answers from the intelligence community, and that attending classified hearings means being unable to share any information obtained at such hearings. What’s more, as Senator Barbara Mikulski stated: “‘Fully briefed’ doesn’t mean that we know what’s going on.”  Without a full picture of Section 702 surveillance, Congress simply cannot provide oversight.
  • Section 702 is not just about keeping us safe from terrorism. It’s a distressingly powerful surveillance tool. While the justification we’ve heard repeatedly is that NSA surveillance is keeping us safer, data collected under Section 702 can be shared in a variety of circumstances, such as ordinary criminal investigations. For example, the NSA has shared intelligence with the Drug Enforcement Agency that has led to prosecutions for drug crimes, all while concealing the source of the data.
  • The President has largely ignored Section 702. While the phone records surveillance program has received significant attention from President Obama, in his speeches and his most recent proposal, Section 702 remains nearly untouched.
  • The way the NSA uses Section 702 is illegal and unconstitutional—and it violates international human rights law. Unlike searches done under a search warrant authorized by a judge, Section 702 has been used by the NSA to get broad FISA court authorization for general search and seizure of huge swathes of communications. The NSA says this is OK because Section 702 targets foreign citizens. The problem is, once constitutionally protected communications of Americans are swept up, the NSA says these communications are “fair game” for its use.
  • Innocent non-Americans don’t even get the limited and much abused protections the NSA promises for Americans. Under international human rights law to which the United States is a signatory, the United States must respect the rights of all persons. With so many people outside the United States keeping their data with American companies, and so much information being swept up through mass surveillance, that makes Section 702 the loophole for the NSA to violate the privacy rights of billions of Internet users worldwide.

The omission of Section 702 reform from the discourse around NSA surveillance is incredibly concerning, because this provision has been used to justify some of the most invasive NSA surveillance. That’s why EFF continues to push for real reform of NSA surveillance that includes an end to Section 702 collection. You can help by educating yourself and engaging your elected representatives. Print out our handy one-page explanation of Section 702. Contact your members of Congress today and tell them you want to see an end to all dragnet surveillance, not just bulk collection of phone records.

https://www.eff.org/deeplinks/2014/05/way-nsa-uses-section-702-deeply-troubling-heres-why

 

By ZACK WHITTAKER CBS NEWS June 30, 2014, 4:02 PM
Legal loopholes could allow wider NSA surveillance, researchers say
CBS NEWS

NEW YORK — Secret loopholes exist that could allow the National Security Agency to bypass Fourth Amendment protections to conduct massive domestic surveillance on U.S. citizens, according to leading academics.

The research paper released Monday by researchers at Harvard and Boston University details how the U.S. government could “conduct largely unrestrained surveillance on Americans by collecting their network traffic abroad,” despite constitutional protections against warrantless searches.

One of the paper’s authors, Axel Arnbak of Harvard University’s Berkman Center for Internet & Society, told CBS News that U.S. surveillance laws presume Internet traffic is non-American when it is collected from overseas.

“The loopholes in current surveillance laws and today’s Internet technology may leave American communications as vulnerable to surveillance, and as unprotected as the internet traffic of foreigners,” Arnbak said.

Although Americans are afforded constitutional protections against unwarranted searches of their emails, documents, social networking data, and other cloud-stored data while it’s stored or in-transit on U.S. soil, the researchers note these same protections do not exist when American data leaves the country.

Furthermore, they suggest that Internet traffic can be “deliberately manipulated” to push American data outside of the country. Although the researchers say they “do not intend to speculate” about whether any U.S. intelligence agencies are actually doing this, they say it could provide a loophole for vacuuming up vast amounts of U.S. citizen data for intelligence purposes, thus “circumventing constitutional and statutory safeguards seeking to protect the privacy of Americans,” they warned.

Play VIDEO
Snowden: NSA programs “uncontrolled and dangerous”
The academic paper lands just over a year since the Edward Snowden revelations first came to light, outlining the massive scope of U.S. government surveillance, under the justification of preventing terrorism. Although the classified programs that make up the NSA’s data acquisition arsenal have only recently been disclosed over the past year, the laws that govern them have been under close scrutiny for years. The paper only adds fuel to the fire of the intelligence agency’s alleged spying capabilities, which have been heavily criticized by civil liberties and privacy groups alike.

“The fix has to come from the law — the same laws that apply to Internet traffic collected domestically should also apply to traffic that is collected abroad,” the paper’s co-author, Sharon Goldberg of Boston University’s Computer Science Department, said.

While the researchers do not say whether these loopholes are being actively exploited — saying their aim is solely to broaden the understanding of the current legal framework — the current legislation as it stands “opens the door for unrestrained surveillance,” they write.

Since the September 11 terrorist attacks, the subsequent introduction of the Patriot Act allowed certain kinds of data to be collected to help in the fight against terrorism — so-called “metadata,” such as the time and date of phone calls and emails sent, including phone numbers and email addresses themselves. But the contents of those phone calls or emails require a warrant. The classified documents leaked by Edward Snowden showed that while the public laws have been in effect for years or even decades, the U.S. government has used secret and classified interpretations of these laws for wider intelligence gathering outside the statutes’ text.

The Obama administration previously said there had been Congressional and Judicial oversight of these surveillance laws — notably Section 215 of the Patriot Act, which authorized the collection of Americans’ phone records; and Section 702 of the Foreign Intelligence Surveillance Act (FISA), which authorized the controversial PRISM program to access non-U.S. residents’ emails, social networking, and cloud-stored data.

But the researchers behind this new study say that the lesser-known Executive Order (EO) 12333, which remains solely the domain of the Executive Branch — along with United States Signals Intelligence Directive (USSID) 18, designed to regulate the collection of American’s data from surveillance conducted on foreign soil — can be used as a legal basis for vast and near-unrestricted domestic surveillance on Americans.

The legal provisions offered under EO 12333, which the researchers say “explicitly allows for intentional targeting of U.S. persons” for surveillance purposes when FISA protections do not apply, was the basis of the authority that reportedly allowed the NSA to tap into the fiber cables that connected Google and Yahoo’s overseas to U.S. data centers.

An estimated 180 million user records, regardless of citizenship, were collected from Google and Yahoo data centers each month, according to the leaked documents. The program, known as Operation MUSCULAR, was authorized because the collection was carried out overseas and not on U.S. soil, the researchers say.

The paper also said surveillance can also be carried out across the wider Internet by routing network traffic overseas so it no longer falls within the protection of the Fourth Amendment.

However, an NSA spokesperson denied that either EO 12333 or USSID 18 “authorizes targeting of U.S. persons for electronic surveillance by routing their communications outside of the U.S.,” in an emailed statement to CBS News.

“Absent limited exception (for example, in an emergency), the Foreign Intelligence Surveillance Act requires that we get a court order to target any U.S. person anywhere in the world for electronic surveillance. In order to get such an order, we have to establish, to the satisfaction of a federal judge, probable cause to believe that the U.S. person is an agent of a foreign power,” the spokesperson said.

The report highlights a fundamental fact about Internet traffic: Data takes the quickest route possible rather than staying solely within a country’s borders. Data between two U.S. servers located within the U.S. can still sometimes be routed outside of the U.S.

Although this is normal, the researchers warn data can be deliberately routed abroad by manipulating the Internet’s core protocols — notably the Border Gateway Protocol (BGP), which determines how Internet traffic is routed between individual networks; and the Domain Name Service (DNS), which converts website addresses to numerical network addresses.

If the NSA took advantage of the loophole by pushing Internet traffic outside of the U.S., it would have enough time to capture the data while it is outside the reach of constitutional protection.

The researchers rebuffed the NSA’s statement in an email: “We argue that these loopholes exist when surveillance is conducted abroad and when the authorities don’t ‘intentionally target a U.S. person’. There are several situations in which you don’t ‘target a U.S. person’, but Internet traffic of many Americans can in fact be affected.”

“We cannot tell whether these loopholes are exploited on a large scale, but operation MUSCULAR seems to find its legal and technical basis in them.”

Mark M. Jaycox, a legislative analyst at the Electronic Frontier Foundation (EFF), said: “If you are intentionally spying on a U.S. person, the government must go to the FISA Court,” he said. “That’s the way the law is supposed to operate.”

Describing how the NSA says it never “intentionally collects” U.S. information, he warned the agency’s foreign data dragnet would inevitably include U.S. data.

“The NSA is an intelligence organization — it’s going to be targeting foreigners. But it’s the way that its targeting millions of foreigners, and millions of foreign communications that will eventually pick up U.S. persons’ data and information. And once that data has been collected, it must be destroyed.”

“It’s a question the NSA can’t reconcile, so they lean heavily on saying they never ‘intentionally collect’ the U.S. person information,” he said

A recent primer on EO 12333 written by the privacy group said the order “mandates rules for spying… on anyone within the United States.” The group also notes because the order remains inside the Executive Branch, the Obama administration could “repeal or modify” it at will.

The American Civil Liberties Union said in a post on its website that the U.S. government interprets USSID 18 to “permit it to sweep up Americans’ international communications without any court order and with little oversight.”

Patrick Toomey, staff attorney at the American Civil Liberties Union’s National Security Project, said: “Today, Americans’ communications increasingly travel the globe — and privacy protections must reliably follow. This academic paper raises key questions about whether our current legal regime meets that standard, or whether it allows the NSA to vacuum up Americans’ private data simply by moving its operations offshore.”

He added that there should be a uniform set of laws that protect Americans’ privacy regardless of where they are in the world, and that Congressional oversight of all rules governing surveillance is needed for comprehensive reforms.

The ACLU has also filed a Freedom of Information lawsuit with a federal court in New York, questioning “whether it [EO 12333] appropriately accommodates the constitutional rights of American citizens and residents whose communications are intercepted in the course of that surveillance.”

Although there is no direct evidence yet to suggest the NSA has exploited this loophole, network monitoring firm Renesys observed two “route hijacking” events in June and November 2013 that led Internet traffic to be redirected through Belarus and Iceland on separate occasions. These events are virtually unnoticeable to the ordinary Internet user, but the side effect is that U.S. data may be readable by foreign governments traveling through their country’s infrastructure. It also could allow the NSA to capture that data by treating it as foreign data.

These legal and technical loopholes can allow “largely unrestrained surveillance on Americans communications,” the researchers wrote.

The NSA, whose job it is to produce intelligence from overseas targets, said for the first time in August 2013 that it derives much of its “foundational authority” for its operations from EO 12333. Recent Snowden disclosures shed new light on understanding the capabilities of the executive order.

It was also recently revealed that Snowden himself questioned the legal authority of EO 12333, according to one declassified email exchange released by the Director of National Intelligence James Clapper.

According to John Schindler, a former NSA chief analyst, speaking to The Washington Post in October, the sole aim of the NSA’s “platoon” of lawyers’ is to figure out “how to stay within the law and maximize collection by exploiting every loophole.”

“It’s fair to say the rules are less restrictive under [EO] 12333 than they are under FISA,” he added.

FISA expanded the NSA’s powers allowing it to obtain foreign intelligence — including economic and political surveillance of foreign governments, companies, news outlets and citizens. But the amended law in 2008 also restricted what can be collected on U.S. citizens.

The so-called “targeting” and “minimization” procedures, which remain classified but were reported as a result of the Snowden leaks, were introduced to ensure any data inadvertently collected on U.S. citizens from overseas would not be used in investigations. These were later criticized following subsequent leaks which suggested the rules on collecting U.S. persons’ data were more relaxed than the statute led the public to believe.

U.S. intelligence agencies can only do so much with U.S. data, therefore they have a “strong incentive to conduct surveillance abroad,” the researchers say, because legal protections under the Fourth Amendment and FISA do not apply outside U.S. territory.

“Programs under EO 12333 may collect startling amounts of sensitive data on both foreigners and Americans,” the paper summarizes, “without any meaningful congressional or judiciary involvement.”

http://www.cbsnews.com/news/legal-loopholes-could-let-nsa-surveillance-circumvent-fourth-amendment-researchers-say/

 

FISA Authority and Blanket Surveillance: A Gatekeeper Without Opposition

Vol. 40 No. 3

The author is with ZwillGen PLLC in Washington, D.C.

Surveillance and espionage were once practices ordinary Americans only read about in novels or saw in movie theaters. That is no longer true. America is at the center of a worldwide communications network. It is home to the world’s most popular telecommunications, email, instant message, and video chat providers. Because of America’s unique role, hundreds of millions of users send communications through American soil. At the same time, America’s enemies have grown from nation-states, like the Soviet Union, to small cells of terrorists that use ordinary communications networks. Taken together, it is not surprising that signals intelligence agencies like the National Security Agency (NSA), which intercept and analyze these signals, would seek and use surveillance powers to conduct more surveillance at home.

Part of this new regime means that more legal process to gather intelligence is being served on companies in the United States. Recent revelations have declassified documents describing the NSA’s broad “collect now, search later” approach to surveillance. This means that some electronic communications providers, and their in-house and outside counsel, are faced with new forms of legal process. But unlike criminal process, which is rooted in a large body of publicly available case law and which often comes to light in the course of criminal trials, this new process comes to these providers in secret. As documents recently declassified by the director of national intelligence demonstrate, the government has served a number of different kinds of orders on providers—each of whom must assess when and how they might comply with or challenge those orders.

My firm and I represented one such provider in In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act [Redacted], 551 F.3d 1004 (FISA Ct. Rev. 2008). That case presented a challenge that more providers may face as the NSA explores its surveillance capabilities. The provider received process known as a 105B directive (which is now called a 702 directive) starting in 2007. In contrast with typical criminal process, there was no prior court review or approval of particular surveillance targets. Instead, a 702 directive, like the one served on that provider, approved of the government’s procedure for conducting surveillance—not its targets.

 

Faced with this process, the provider had to make decisions about how it could respond. The provider chose not to comply with the process, and the government filed a motion to compel in the Foreign Intelligence Surveillance Court (FISC), a secret court charged with reviewing and approving some types of surveillance.

The course of that litigation proved complex. The Foreign Intelligence Surveillance Court of Review (FISCR), which handles appeals from the FISC, had published a single opinion before the In re Directives case, and while the lower court, the FISC, had rules for proceedings, there were no publicly available decisions on which to rely in litigating the procedural aspects of the case. The merits of the case too were litigated in the dark. No docket was made available, and there was no public mention of the case until after it was appealed and the FISCR entered its decision. Some documents related to the case are still being declassified, but in the words of the FISCR’s declassified decision, there was “multitudinous briefing” in the FISC and ample briefing on appeal.

The FISCR released its opinion in In re Directives in 2009, and a beam of light shone on its decisions for the first time in seven years. But then the FISC went dark again. In late 2013, however, the director of national intelligence, in response to increased public pressure seeking information on surveillance activities, began releasing more FISC opinions that are instructive on how the FISC operates and how it has been interpreting the Fourth Amendment and process under the Foreign Intelligence Surveillance Act, 50 U.S.C. § 1801 et seq. (FISA) in the intervening years, giving much needed guidance to providers and outside counsel.

 

The History of FISA

Understanding how to advise clients faced with FISA process, the challenges they face, and how to revise FISA to address public concerns about the NSA’s “collect now, search later” surveillance requires some history, legal analysis, and creative thinking. FISA’s history provides context for the reforms needed to adjust the balance between surveillance and privacy. Current events provide information about the extent of the problem. And creative thinking is required to create solutions.

FISA occupies an uneasy place. It resides where intelligence gathering meets the Fourth Amendment. FISA addresses the problem of how, and when, the government can conduct surveillance for intelligence-gathering purposes on United States soil. Over time, Congress has addressed this delicate balance by amending FISA to expand and contract surveillance capabilities. Today, FISA provides a comprehensive set of procedures for obtaining and using “foreign intelligence information” within the United States.

Before Congress passed FISA in 1978, there were no clear rules for when the executive branch could conduct clandestine surveillance for foreign intelligence purposes. Prior to FISA, every president since at least 1931 used surveillance to protect national security interests—even when no law specifically allowed that surveillance. See Sen. Rep. No. 94-755 (1976), Book III, Supplementary Detailed Staff Reports on Intelligence Activities and the Rights of Americans [hereinafter Church Report], available at www.intelligence.senate.gov/pdfs94th/94755_III.pdf. Presidents justified this surveillance by pointing to their role as commander-in-chief combined with their duty and authority to execute the laws of the United States. U.S. Const. art. II, § 1, § 2, cl. 1; see Church Report, supra, at 279.

This power remained relatively untested until the seminal case United States v. U.S. District Court for Eastern District of Michigan, Southern Division, 407 U.S. 297 (1972), also known as the Keith case. There, the government prosecuted three individuals for conspiring to bomb an office of the Central Intelligence Agency in Ann Arbor, Michigan. The Keith defendants moved to compel the government to disclose electronic surveillance information the government collected without first getting a warrant. The attorney general argued the surveillance satisfied the Fourth Amendment because it was necessary “to gather intelligence information deemed necessary to protect the nation from attempts of domestic organizations to attack and subvert the existing structure of the Government.” Id. at 300. The Supreme Court found that the government must get a warrant before engaging in domestic surveillance, but limited its opinion to “domestic aspects of national security” and stated that it “express[ed] no opinion as to the issues which may be involved with respect to activities of foreign powers or their agents.” Id. at 321. Keith changed the landscape of domestic surveillance, but lower courts struggled to decide when surveillance required a warrant and when surveillance fell outside Keith’s holding; as a result, they increasingly invalidated surveillance. See Zweibon v. Mitchell, 516 F.2d 594, 651 (D.C. Cir. 1975).

Faced with this uncertainty and the revelations about warrantless surveillance, the Senate created the Church Committee to investigate the executive branch’s use of warrantless surveillance. The committee’s report provided revelations much like those that are coming to light today as a result of Edward Snowden’s leaks. The committee’s report, which is actually 14 separate reports regarding intelligence abuses, provides one of the most extensive, in-depth examinations of the use and abuse of surveillance powers in the United States. The Church Report revealed that from the early 1960s to 1972, the NSA targeted certain Americans’ international communications by placing their names on a watch list. It contended that intercepting these Americans’ communications was part of monitoring programs it was conducting against international communications channels. As is the case in news reports today, “to those Americans who have had their communications—sent with the expectation that they were private—intentionally intercepted and disseminated by their Government, the knowledge that NSA did not monitor specific communications channels solely to acquire their message is of little comfort.” Church Report, supra, at 735.

History tends to repeat itself. Today, newspapers have reported that the NSA engages in bulk telephone records surveillance using the “Business Records” provision in section 215 of FISA (50 U.S.C. § 1861). This bulk surveillance, however, isn’t anything new. The Church Report provides shockingly similar revelations about the NSA’s Operation SHAMROCK. Much like recent revelations about today’s bulk records collection, Operation SHAMROCK, which lasted all the way from August 1945 until May 1975, collected millions of telegrams leaving or transiting the United States and monitored certain telephone links between the United States and South America. As part of this monitoring, the NSA intercepted Americans’ international communications and disseminated those communications to other intelligence agencies. In doing so, the NSA “never informed the companies that it was analyzing and disseminating telegrams of Americans.” Unlike today, however, “the companies, who had feared in 1945 that their conduct might be illegal, apparently never sought assurances that NSA was limiting its use to the messages of foreign targets once the intercept program had begun.” Church Report, supra, at 740–41.

The NSA discontinued SHAMROCK in 1975, but it still incidentally collected Americans’ communications—much like it does (to a lesser extent) today. The Church Committee described the NSA’s “initial interception of a stream of communications” as “analogous to a vacuum cleaner.” “NSA picks up all communications carried over a specific link that it is monitoring. The combination of this technology and the use of words to select communications of interest results in NSA analysts reviewing the international messages of American citizens, groups, and organizations for foreign intelligence.” Id. at 741. This is eerily similar to the FISC’s description of bulk records collection as recently as October 2011, in which it stated “that NSA has acquired, is acquiring, and . . . will continue to acquire tens of thousands of wholly domestic communications,” Redacted, slip op. at 33 (FISA Ct. Oct. 3, 2011), because it intercepts all communications over certain Internet links it is monitoring and is “unable to exclude certain Internet transactions.” Id. at 30.

 

Purposes of FISA

That history tells us where FISA comes from and the problems Congress was trying to solve. Congress had two main goals: provide some oversight where there was none, and draw clear lines so that law enforcement would know when it could use foreign intelligence process and when it had to follow ordinary criminal process. To address these goals, FISA contains two important parts. First, it established a framework for judicial review by creating the Foreign Intelligence Surveillance Court and the Foreign Intelligence Surveillance Court of Review. It also created a new FISA process to replace criminal process such as warrants, subpoenas, surveillance orders, and pen register/trap and trace orders. The FISA versions of each of these has less stringent requirements for the government to satisfy than criminal process. See 50 U.S.C. § 1801–12 (electronic surveillance equivalent to Title III orders), 50 U.S.C. § 1821–29 (physical searches like search warrants), 50 U.S.C. § 1841–46 (pen registers and trap-and-trace devices), 50 U.S.C. § 1861–62 (business records like grand jury subpoenas).

Second, FISA addressed when law enforcement can and cannot use these FISA processes to conduct surveillance or gather evidence. As it was originally enacted, law enforcement could obtain FISA process, rather than criminal process, when the “primary purpose” of surveillance was to gather foreign intelligence information. At the same time, Congress explicitly excluded activities conducted abroad from FISA’s reach. It also did not provide protection for U.S. citizens when they left the United States. See H.R. Rep. No. 95–1283, at 51 (1978).

To fill in the gaps FISA left and to provide rules of executive branch intelligence agencies, President Reagan issued Executive Order 12,333, United States Intelligence Activities (46 Fed. Reg. 59,941 (Dec. 4, 1981)). That order (as amended) remains the basis for executive branch surveillance for foreign intelligence purposes. What is important is that the order sets forth procedures that apply where FISA did not, specifically for surveillance of United States persons located abroad. Id. § 2.5.

Foreign intelligence gathering continued under FISA and Executive Order 12,333 for nearly two decades without major revision or challenge, until the attacks of September 11, 2001. Following 9/11, Congress passed the USA Patriot Act, which amended FISA by expanding law enforcement authority and lowering the standards required to obtain surveillance authority. Pub. L. No. 107–56 (H.R. 3162), 115 Stat. 272 (2001). The act eliminated the “primary purpose” test and replaced it with a “significant purpose” test. Id. § 218. The “primary purpose” test led law enforcement to create a wall between agencies that engaged in criminal prosecutions (such as parts of the Federal Bureau of Investigation and the Department of Justice) and agencies that primarily engaged in foreign intelligence gathering (such as the NSA). One of the problems identified in the aftermath of 9/11 was a reluctance to share information because of this “primary purpose” rule—and the fear that doing so could put surveillance or criminal prosecutions at risk.

In a rare published decision (there have been only two), the FISCR upheld the “significant purpose” test in In re Sealed Case, 310 F.3d 717 (FISA Ct. Rev. 2002). The FISC court had found that the “significant purpose” standard was lower than the “primary purpose” standard but that the Fourth Amendment did not require more. The court concluded that the procedures and government showings required under FISA, even if they do not meet the warrant requirement, come close enough that FISA as amended by the Patriot Act meets the balancing test between Fourth Amendment rights and the need to protect against national security threats. In re Sealed Case would prove to be a launching point for reconciling FISA with the Fourth Amendment and for chipping away at the warrant requirement for foreign intelligence-gathering purposes.

In December 2005, a New York Times article revealed a warrantless domestic wiretapping program, the Terrorist Surveillance Program (TSP), in which the NSA was allowed to eavesdrop on communications where at least one party was not a United States person. According to reports, technical glitches resulted in some “purely domestic” communications being subject to surveillance. The surveillance was based on a 2002 executive order that allowed the NSA to monitor international email messages and international telephone calls transmitted by communications networks based in the United States—surveillance that was outside the scope of review in In re Sealed Case. That executive order claimed that FISA’s warrant requirements were implicitly superseded by the passage of the congressional resolution authorizing the use of military force against terrorists and that the president’s inherent authority under Article II of the Constitution to conduct foreign surveillance trumped FISA.

A group of plaintiffs sought to challenge the TSP in American Civil Liberties Union v. National Security Agency, 438 F. Supp. 2d 754 (E.D. Mich. 2006). The district court ruled that the surveillance violated the Fourth Amendment, finding that the TSP was implemented without regard to the Fourth Amendment or to FISA, and thus violated FISA, the standards of Title III, and the Fourth Amendment. On appeal, however, the Sixth Circuit dismissed the case, finding that the plaintiffs lacked standing to challenge the TSP because they had not alleged that they were the actual victims of warrantless surveillance. ACLU v. NSA, 493 F.3d 644 (6th Cir. 2007); see also Clapper v. Amnesty Int’l, 133 S. Ct. 1138 (2013).

The Protect America Act of 2007

Following the public outcry in response to the New York Times article and the ACLU decision, the Bush administration proposed the Protect America Act of 2007 (PAA), Pub. L. No. 110-55, 121 Stat. 552, which was designed to address surveillance of communications facilities located in the United States that transmit communications between individuals both of whom are located abroad. PAA § 105A. Again, just as in 1978, the government needed more guidance on when FISA applied and when the executive branch was free of its requirements. The PAA addressed a new problem: capturing wholly foreign communications on U.S. soil. In the past, to capture foreign communications between non-U.S. persons, the government simply implemented surveillance on foreign communications networks, which are not subject to restrictions imposed by the Fourth Amendment or any statute. Now that foreign communications could be transferred within the United States and the TSP’s constitutionality had been called into doubt, the intelligence community required a new tool to continue that surveillance. The PAA, by providing a number of procedures to conduct surveillance of targets outside the United States, and in an attempt to avoid resort to traditional warrants and Title III orders, implemented a system of internal controls at the NSA as well as overarching review of policies and procedures by the FISC. The PAA was a stopgap measure, to preserve some aspects of warrantless surveillance of foreign communications transmitted within the United States while Congress worked to overhaul FISA.

Notably, the PAA, like the Patriot Act, again changed the test of when the FISA process does and does not apply. The PAA changed the focus from the identity of the party targeted to whether a party was present in the United States. This change made it much simpler for the attorney general and the director of national intelligence to approve surveillance—rather than certifying that both parties to the communication were foreign powers or agents of foreign powers, they now only had to certify that the target of the surveillance was located outside the United States. Under the PAA, the director of national intelligence and the attorney general could permit, for up to one year, “the acquisition of foreign intelligence information concerning persons reasonably believed to be outside the United States” if they determined that the acquisition met five specified criteria and the minimization procedures for that surveillance were approved by the FISC. PAA § 105B. In practical terms, the government could serve providers with orders that the FISC approved, and then name the targets of surveillance later.

One provider, Yahoo, challenged this in In re Directives [Redacted] Pursuant to Section 105B of the Foreign Intelligence Surveillance Act [Redacted], 551 F.3d 1004 (FISA Ct. Rev. 2008). In that case, the government revealed that it not only complied with the PAA but also voluntarily complied with Executive Order 12,333, 46 Fed. Reg. 59,941, 59,951 (Dec. 4, 1981), which taken together mean that the certifications at issue “permit surveillances conducted to obtain foreign intelligence for national security purposes when those surveillances are directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United States.” In re Directives, 551 F.3d at 1008. The court upheld these warrantless searches, finding that because the purpose of the surveillance was to gather foreign intelligence information, it fell under a “foreign intelligence exception to the Fourth Amendment’s warrant requirement” so long as it was directed against foreign powers or agents of foreign powers reasonably believed to be located outside the United states. Id. at 1012.

The court also found that the searches were reasonable because they complied with Executive Order 12,333, which required probable cause to believe that an individual is outside the United States and a finding that such surveillance was necessary, and which limited the duration of the surveillance and thus contained sufficient protections to avoid risk of mistake or executive branch misconduct.

The PAA was a stopgap measure and was eventually replaced by the FISA Amendments Act of 2008 (FAA), Pub. L. No. 110-261, § 403, 122 Stat. 2436, 2473. The FAA repealed the most troublesome provision of the PAA, which provided for warrantless surveillance of foreign intelligence targets “reasonably believed” to be outside the United States, even if they were U.S. persons, by adding a new section to FISA entitled “Additional Procedures Regarding Certain Persons Outside the United States.” Much of this section enshrines the protections present in Executive Order 12,333’s treatment of U.S. persons that the court relied on in In re Sealed Case and In re Directives to uphold the surveillance of United States persons located abroad.

The FAA again addressed the question of when FISA applies via a complicated web of procedures and processes for each category of target subject to surveillance: individuals outside the country that are not “U.S. Persons” (section 1881a), acquisitions inside the country targeting U.S. persons outside the country (section 1881b), and U.S. persons outside the country (section 1881c). Different processes are required for each type of target, but in a nutshell, U.S. persons receive slightly more protection. The most important change is that there is no prior judicial review of surveillance conducted in the United States that targets non-U.S. persons located outside the United States. FAA § 1881a. To conduct surveillance of U.S. persons outside the United States, however, the government must first obtain FISC approval of the particular targets. FAA § 1881b.

 

Time to Address Problems

FISA’s history and current events demonstrate that we are at a point in the cycle where it is again time to address the two basic questions: How do we provide oversight of intelligence-gathering activities? And when does this oversight apply? FISA, from a textual perspective, provides the government with far-reaching authority for surveillance and specific process for each type of surveillance it may want to conduct, but the public was relatively unaware of how the government used that authority until Edward Snowden leaked classified documents in late 2013 providing some detail on the NSA’s use of surveillance activities. In response, the government has begun declassifying a wealth of FISC decisions, letters to Congress, and other information regarding the NSA’s use of FISA authorities. A detailed analysis of these opinions could lead to a new report as voluminous as the Church Committee’s reports, but even a high-level analysis provides some context for moving forward.

The recently released opinions—such as Redacted, LEXIS 157706 (FISA Ct. Oct. 3, 2011), and Redacted II, LEXIS 157706 (FISA Ct. Nov. 30, 2011)—confirm what appeared to be the case in In re Directives, that the FISC has adopted an exception to the warrant requirement for foreign intelligence gathering—particularly where the government seeks communications that are not wholly domestic. In those cases, despite finding that the NSA knowingly collected wholly domestic communications that had nothing to do with foreign intelligence, the FISC generally approved most of the government’s targeting and minimization procedures. On a bad set of facts for the government, the FISC held that only a small part of the NSA’s surveillance program was unconstitutional and only because the NSA did not make enough of an effort to delete wrongly collected communications—a problem the NSA soon remedied. Redacted II, LEXIS 157705 (FISA Ct. Nov. 30, 2011).

The window left open in Keith seems to be closed. Similarly, the FISC has approved of the NSA’s “collect now, restrict searching later” approach to minimization. See In re Application of the F.B.I. for an Order Requiring the Production of Tangible Things from [Redacted], No. BR 13-109, LEXIS 134786 (FISA Ct. Sept. 13, 2013). In other words, the FISC has found no constitutional or statutory impediment to the government “over collecting” data—so long as it does not intentionally collect wholly domestic communications and it has minimization procedures to restrict access. There is no indication that the government has used its surveillance powers improperly (except in a limited number of circumstances attributable to NSA employee misconduct), but the FISC has not taken a robust view of the Fourth Amendment.

As was the case back in the late 1970s, the American public has reacted to executive surveillance activities—some of which are eerily similar to the NSA’s use of surveillance authority in the mid– to late 1970s. And as was the case in the late 1970s, it may again be time for Congress to take action. The problems remain quite similar to those Congress faced in 1978: provide oversight where there is none, or where it is inadequate, and make clear when the government can, and cannot, use different types of FISA process.

In late 2013, numerous members of Congress began proposing bills to reform FISA and provide new protections. See Mark M. Jaycox, “Cheat Sheet to Congress’ NSA Spying Bills,” Elec. Frontier Found. (Sept. 11, 2013), http://www.eff.org/deep links/2013/08/effs-cheat-sheet. Given the heated nature of the current debate, it is likely that the particular content of these bills will change daily, and summarizing their particularities is best left to blogs. Still, the bills generally fall into two categories: increasing transparency and restructuring the process. A few bills address bulk collection of records under section 215, but none takes a comprehensive approach to changing the question of when FISA applies and when it does not.

The current system of checks and balances under the FAA is simply not enough. It’s not because of a lack of desire by the providers to defend their users. Unlike the telephone and telegraph companies that did not act to end NSA spying in the Operation SHAMROCK era, providers today are taking a much more active role in the process. Yahoo challenged the FISA process in 2008, interest groups have filed actions seeking information about surveillance practices, and now providers have brought declaratory judgment actions seeking to reveal more information about surveillance process they receive.

One of the pending bills, Senator Blumenthal’s FISA Court Reform Act of 2013, Senate Bill 1460 and Senate Bill 1467, provides an answer that, having had the experience of litigating before the FISC myself, I believe could provide much needed improvements. That bill provides for a new Office of the Special Advocate, which introduces an adversary to the court. (This is similar to the public privacy advocate that President Obama recently proposed.) The act attempts to solve a basic problem with the current oversight procedures: There is no true adversarial process for most of the legal issues that arise. The newly declassified opinions the director of national intelligence has released make this abundantly clear. Setting aside the legal arguments, the procedural history of the opinions indicates delays on the government’s part, a lack of supervision after the court issues its orders, and a preference for secrecy over public disclosure at any cost. Appointing a special advocate ad litem for the public would ensure that novel legal arguments in the FISA court would face a consistent, steady challenge no matter who the provider is, thereby strengthening the FISA process by subjecting results to checks and balances.

Without such a process, the court and the Department of Justice must work through difficult legal issues with no balancing input. An advocate could participate in all cases involving a new statute or authority or a new interpretation or application of an existing authority. The special advocate could choose the cases in which to be involved, or the court or a provider that receives process could request its involvement where an opposition would be useful to test and evaluate the government’s legal arguments. The special advocate’s office could be established with proper security safeguards to draft, store, and access classified records more efficiently. It could also be required to report to the public and Congress the number of cases it has argued and how often it has limited or pared back the government’s requests. It would provide a vital counterpoint for legislators exercising their oversight duties.

The special advocate would be especially useful in cases in which the government demands access to communications in a way that may have a profound effect on people other than the target, such as when decryption may be involved or when a provider is asked to provide assistance in ways that are unlike traditional wiretaps.

Providing for an advocate in front of the court would also resolve several problems for companies and individuals faced with receiving FISA process or having evidence gathered using that process used against them. The statutory process as it stands now does not necessarily provide for complete transparency or a level playing field for the provider. As the published decision in In re Directives makes clear, a phalanx of 11 government lawyers, including the acting solicitor general of the United States, was involved in defending the statute. The decision also shows that some of the documents relied on by the court of review were classified procedures submitted as part of an ex parte appendix that remains sealed. 551 F.3d at 1013–14.

If an advocate were present in other matters before the FISC, the government and court would be more likely to provide more public information on what challenges have and have not been successful. Public access would also provide litigators with a much greater opportunity to use those challenges in advising and defending their clients. The FISC’s decisions may or may not have been correct, depending on your view, but the secrecy employed up to this point erodes the safeguards built into our adversarial court system. The presence of an advocate would help to ensure that the government cannot continue to keep new opinions classified, unless it is truly in the interest of national security to do so.

Revising FISA is no easy task, and analyzing and responding to the FISA process presents thorny questions. There is one constant throughout the history of surveillance, as was the case in the Church Report and as is the case today with news reports about NSA surveillance: The government will use the surveillance power it is given to its fullest. This article does not opine on when that is and is not appropriate. America’s long history of surveillance and current events demonstrate a need to revise the process and take a hard look at whether courts have the tools to oversee executive branch surveillance and when the executive branch should be allowed to use foreign intelligence procedures. Introducing an advocate to test the government’s theories and surveillance in every case—even the ones it brings ex parte—would go a long way toward ensuring that the American public is not shocked again.

https://www.americanbar.org/publications/litigation_journal/2013-14/spring/fisa_authority_and_blanket_surveillance_gatekeeper_without_opposition.html

Meet Executive Order 12333: The Reagan rule that lets the NSA spy on Americans

July 18, 2014

John Napier Tye served as section chief for Internet freedom in the State Department’s Bureau of Democracy, Human Rights and Labor from January 2011 to April 2014. He is now a legal director of Avaaz, a global advocacy organization.

In March I received a call from the White House counsel’s office regarding a speech I had prepared for my boss at the State Department. The speech was about the impact that the disclosure of National Security Agency surveillance practices would have on U.S. Internet freedom policies. The draft stated that “if U.S. citizens disagree with congressional and executive branch determinations about the proper scope of signals intelligence activities, they have the opportunity to change the policy through our democratic process.”

But the White House counsel’s office told me that no, that wasn’t true. I was instructed to amend the line, making a general reference to “our laws and policies,” rather than our intelligence practices. I did.

Even after all the reforms President Obama has announced, some intelligence practices remain so secret, even from members of Congress, that there is no opportunity for our democracy to change them.

Public debate about the bulk collection of U.S. citizens’ data by the NSA has focused largely on Section 215 of the Patriot Act, through which the government obtains court orders to compel American telecommunications companies to turn over phone data. But Section 215 is a small part of the picture and does not include the universe of collection and storage of communications by U.S. persons authorized under Executive Order 12333.

From 2011 until April of this year, I worked on global Internet freedom policy as a civil servant at the State Department. In that capacity, I was cleared to receive top-secret and “sensitive compartmented” information. Based in part on classified facts that I am prohibited by law from publishing, I believe that Americans should be even more concerned about the collection and storage of their communications under Executive Order 12333 than under Section 215.

Bulk data collection that occurs inside the United States contains built-in protections for U.S. persons, defined as U.S. citizens, permanent residents and companies. Such collection must be authorized by statute and is subject to oversight from Congress and the Foreign Intelligence Surveillance Court. The statutes set a high bar for collecting the content of communications by U.S. persons. For example, Section 215 permits the bulk collection only of U.S. telephone metadata — lists of incoming and outgoing phone numbers — but not audio of the calls.

Executive Order 12333 contains no such protections for U.S. persons if the collection occurs outside U.S. borders. Issued by President Ronald Reagan in 1981 to authorize foreign intelligence investigations, 12333 is not a statute and has never been subject to meaningful oversight from Congress or any court. Sen. Dianne Feinstein (D-Calif.), chairman of the Senate Select Committee on Intelligence, has said that the committee has not been able to “sufficiently” oversee activities conducted under 12333.

Unlike Section 215, the executive order authorizes collection of the content of communications, not just metadata, even for U.S. persons. Such persons cannot be individually targeted under 12333 without a court order. However, if the contents of a U.S. person’s communications are “incidentally” collected (an NSA term of art) in the course of a lawful overseas foreign intelligence investigation, then Section 2.3(c) of the executive order explicitly authorizes their retention. It does not require that the affected U.S. persons be suspected of wrongdoing and places no limits on the volume of communications by U.S. persons that may be collected and retained.

“Incidental” collection may sound insignificant, but it is a legal loophole that can be stretched very wide. Remember that the NSA is building a data center in Utah five times the size of the U.S. Capitol building, with its own power plant that will reportedly burn $40 million a year in electricity.

“Incidental collection” might need its own power plant.

A legal regime in which U.S. citizens’ data receives different levels of privacy and oversight, depending on whether it is collected inside or outside U.S. borders, may have made sense when most communications by U.S. persons stayed inside the United States. But today, U.S. communications increasingly travel across U.S. borders — or are stored beyond them. For example, the Google and Yahoo e-mail systems rely on networks of “mirror” servers located throughout the world. An e-mail from New York to New Jersey is likely to wind up on servers in Brazil, Japan and Britain. The same is true for most purely domestic communications.

Executive Order 12333 contains nothing to prevent the NSA from collecting and storing all such communications — content as well as metadata — provided that such collection occurs outside the United States in the course of a lawful foreign intelligence investigation. No warrant or court approval is required, and such collection never need be reported to Congress. None of the reforms that Obama announced earlier this year will affect such collection.

Without any legal barriers to such collection, U.S. persons must increasingly rely on the affected companies to implement security measures to keep their communications private. The executive order does not require the NSA to notify or obtain consent of a company before collecting its users’ data.

The attorney general, rather than a court, must approve “minimization procedures” for handling the data of U.S. persons that is collected under 12333, to protect their rights. I do not know the details of those procedures. But the director of national intelligence recently declassified a document (United States Signals Intelligence Directive 18) showing that U.S. agencies may retain such data for five years.

Before I left the State Department, I filed a complaint with the department’s inspector general, arguing that the current system of collection and storage of communications by U.S. persons under Executive Order 12333 violates the Fourth Amendment, which prohibits unreasonable searches and seizures. I have also brought my complaint to the House and Senate intelligence committees and to the inspector general of the NSA.

I am not the first person with knowledge of classified activities to publicly voice concerns about the collection and retention of communications by U.S. persons under 12333. The president’s own Review Group on Intelligence and Communication Technologies, in Recommendation 12 of its public report, addressed the matter. But the review group coded its references in a way that masked the true nature of the problem.

At first glance, Recommendation 12 appears to concern Section 702 of the FISA Amendments Act, which authorizes collection inside the United States against foreign targets outside the United States. Although the recommendation does not explicitly mention Executive Order 12333, it does refer to “any other authority.” A member of the review group confirmed to me that this reference was written deliberately to include Executive Order 12333.

Recommendation 12 urges that all data of U.S. persons incidentally collected under such authorities be immediately purged unless it has foreign intelligence value or is necessary to prevent serious harm. The review group further recommended that a U.S. person’s incidentally collected data never be used in criminal proceedings against that person, and that the government refrain from searching communications by U.S. persons unless it obtains a warrant or unless such searching is necessary to prevent serious harm.

The White House understood that Recommendation 12 was intended to apply to 12333. That understanding was conveyed to me verbally by several White House staffers, and was confirmed in an unclassified White House document that I saw during my federal employment and that is now in the possession of several congressional committees.

In that document, the White House stated that adoption of Recommendation 12 would require “significant changes” to current practice under Executive Order 12333 and indicated that it had no plans to make such changes.

All of this calls into question some recent administration statements. Gen. Keith Alexander, a former NSA director, has said publicly that for years the NSA maintained a U.S. person e-mail metadata program similar to the Section 215 telephone metadata program. And he has maintained that the e-mail program was terminated in 2011 because “we thought we could better protect civil liberties and privacy by doing away with it.” Note, however, that Alexander never said that the NSA stopped collecting such data — merely that the agency was no longer using the Patriot Act to do so. I suggest that Americans dig deeper.

Consider the possibility that Section 215 collection does not represent the outer limits of collection on U.S. persons but rather is a mechanism to backfill that portion of U.S. person data that cannot be collected overseas under 12333.

Proposals for replacing Section 215 collection are currently being debated in Congress. We need a similar debate about Executive Order 12333. The order as used today threatens our democracy. There is no good reason that U.S. citizens should receive weaker privacy and oversight protections simply because their communications are collected outside, not inside, our borders.

I have never made any unauthorized disclosures of classified information, nor would I ever do so. I fully support keeping secret the targets, sources and methods of U.S. intelligence as crucial elements of national security. I was never a disgruntled federal employee; I loved my job at the State Department. I left voluntarily and on good terms to take a job outside of government. A draft of this article was reviewed and cleared by the State Department and the NSA to ensure that it contained no classified material.

When I started at the State Department, I took an oath to protect the Constitution of the United States. I don’t believe that there is any valid interpretation of the Fourth Amendment that could permit the government to collect and store a large portion of U.S. citizens’ online communications, without any court or congressional oversight, and without any suspicion of wrongdoing. Such a legal regime risks abuse in the long run, regardless of whether one trusts the individuals in office at a particular moment.

I am coming forward because I think Americans deserve an honest answer to the simple question: What kind of data is the NSA collecting on millions, or hundreds of millions, of Americans?

https://www.washingtonpost.com/opinions/meet-executive-order-12333-the-reagan-rule-that-lets-the-nsa-spy-on-americans/2014/07/18/93d2ac22-0b93-11e4-b8e5-d0de80767fc2_story.html?utm_term=.0be4d4e8beac

A Primer on Executive Order 12333: The Mass Surveillance Starlet

JUNE 2, 2014

Many news reports have focused on Section 215 of the Patriot Act (used to collect all Americans’ calling records) and Section 702 of the Foreign Intelligence Surveillance Act Amendments Act (FAA) (used to collect phone calls, emails and other Internet content) as the legal authorities supporting much of the NSA’s spying regime. Both laws were passed by Congress and are overseen by the Foreign Intelligence Surveillance Court (FISA court). However, it’s likely that the NSA conducts much more of its spying under the President’s claimed inherent powers and only governed by a document originally approved by President Reagan titled Executive Order 12333. The Senate Select Committee on Intelligence is currently conducting a secret investigation into the order, but Congress as a whole—including the Judiciary committee—must release more information about the order to the public.

EO 12333 was first written in 1981 in the wake of Watergate and the Foreign Intelligence Surveillance Act, an act passed by Congress that regulates spying conducted on people located within the United States. Since FISA only covers specific types of spying, the President maintains that the executive branch remains free to spy abroad on foreigners with little to no regulation by Congress.

Executive Order 12333

The Executive Order does three things: it outlines what it governs, when the agencies can spy, and how they can spy. In broad strokes, the Executive Order mandates rules for spying on United States persons (a term that includes citizens and lawful permanent residents wherever they may be) and on anyone within the United States. It also directs the Attorney General and others to create further policies and procedures for what information can be collected, retained, and shared.

The first section of the order covers the role of every agency conducting intelligence in the Intelligence Community, which includes seventeen different agencies, including well-known entities like the Central Intelligence Agency (CIA) and the NSA, and lesser-known entities like the Office of Terrorism and Financial Intelligence in the Department of Treasury. The roles vary by agency. For instance, the NSA is, among other things, responsible for “collection, processing and dissemination of signals intelligence,” while the CIA is responsible for “national foreign intelligence.

The Information Collected

The Executive Order purports to cover all types of spying conducted with the President’s constitutional powers—including mass spying. That’s important to note because some of the spying conducted under EO 12333 is reportedly similar to the mass spying conducted under Section 702 of the FAA. Under this type of spying, millions of innocent foreigners’ communications are collected abroad, inevitably containing Americans’ communications. In the Section 702 context, this includes techniques like Prism and Upstream. While we don’t know for sure, the Executive Order probably uses similar techniques or piggybacks off of programs used for Section 702 spying.

The second section of the EO partly covers mass spying by establishing what information intelligence agencies can collect, retain, and share about US persons. The current guidelines, the United States Signals Intelligence Directive SP0018, also known as “USSID 18,” are (just like the “minimization procedures” based off of them) littered with loopholes to over-collect, over-retain, and over-share Americans’ communications—all without a probable cause warrant or any judicial oversight.

Defenders (.pdf) of the mass spying conducted under the Executive Order point out the order “protects” such US person information with guidelines like USSID 18, but such protections are window-dressing, at best. Policies like USSID 18 and other accompanying Executive Order guidelines such as the “Special Procedures Governing Communications Metadata Analysis” allow for extensive use of US person information and data without a probable cause warrant. Indeed, news reports and Congressional testimony confirm the “Special Procedures” are used to map Americans’ social networks. The procedures are clear evidence the government believes that Fourth Amendment’s protections stop at the border.

Uses of Executive Order 12333

We do know a little about the spying conducted using EO 12333, but more must be revealed to the public. One early news report revealed it was the NSA’s claimed authority for the collection of Americans’ address books and buddy lists. It’s also involved in the NSA’s elite hacking unit, the Tailored Access Operations unit, which targets system administrators and installs malware while masquerading as Facebook servers. And in March, the Washington Postrevealed the order alone—without any court oversight—is used to justify the recording of “100 percent of a foreign country’s telephone calls.” The NSA’s reliance on the order for foreign spying includes few, if any, Congressional limits or oversight. Some of the only known limits on Executive spying are found in Executive procedures like USSID 18, the metadata procedures discussed above, and probably other still-classified National Security Policy Directives, none of which have been publicly debated much less approved by Congress or the courts.

The extent of the NSA’s reliance on Executive Order 12333 demands that the government release more information about how the order is used, or misused. And Congress—specifically the Judiciary and Intelligence committees—must reassert the same aggressive and diligent oversight they performed in the 1970s and 1980s.

https://www.eff.org/deeplinks/2014/06/primer-executive-order-12333-mass-surveillance-starlet

Maintaining America’s Ability to Collect Foreign Intelligence: The Section 702 Program

May 13, 2016 21 min read Download Report

Authors:Paul Rosenzweig, Charles Stimson andDavid Shedd

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Section 702 of the Foreign Intelligence Surveillance Act (FISA) will, in its current form, come up for reauthorization in 2017. Broadly speaking, the Section 702 program targets non-U.S. persons reasonably believed to be located outside the United States, in order to acquire foreign intelligence. Over the past several years, this surveillance of the online activities of foreigners has been a critical and invaluable tool for American intelligence professionals and officials. Knowledgeable officials note that more than 25 percent of all current U.S. intelligence is based on information collected under Section 702.[1]

Still, there are those who have concerns about the program. These critics believe that the program, as currently implemented, infringes on Americans’ rights. Their concern hinges on the inevitable reality that in the course of collecting information about foreign actors, the Section 702 program will also collect information about American citizens. As a result, some opponents liken the Section 702 program to the government telephony metadata program disclosed by Edward Snowden, and characterize Section 702 as an instance of government overreach.[2] Such comparisons are misguided and unfair. The program is so vital to America’s national security that Congress should reauthorize Section 702 in its current form.

Section 702 Explained

Section 702 has its origins in President George W. Bush’s terrorist surveillance program and the Patriot Act. That program was initiated in the immediate aftermath of the 9/11 terror attacks, on the President’s own authority. That reliance on exclusive presidential authority contributed to the controversy that initially attended the program—some vocal critics saw it as an example of executive overreach.

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That aspect of the criticism was significantly ameliorated, if not eliminated, several years later, when Congress fully discussed and authorized the activities in question. Indeed, the governing law was adopted and amended twice, after the program had been initiated on the President’s own authority. First, Congress adopted a temporary measure known as the Protect America Act in 2007.[3] Then, it passed the FISA Amendments Act (FAA) in 2008. This is the statute that includes the new Section 702.[4]

Under Section 702, the U.S. Attorney General and the Director of National Intelligence (DNI) may jointly authorize surveillance of people who are not “U.S. persons.” U.S. persons is a term of art in the intelligence community (IC) that means people who are not only American citizens but also covers permanent-resident aliens. As such, the targets of Section 702 surveillance can be neither citizens nor permanent residents of the U.S.

Section 702 authorizes the government to acquire foreign intelligence by targeting non-U.S. persons “reasonably believed” to be outside U.S. borders. Taken together, these two requirements identify the fundamental domain of Section 702 surveillance: it applies to foreigners on foreign soil. It is expressly against the law to attempt collection of information from targets inside the U.S.—whether Americans or foreigners—or to deliberately target the collection of online communications of American citizens.[5]

The law also requires the government to develop “targeting procedures”—the steps the government needs to take in order to ensure that the target is outside the United States at any time that electronic surveillance is undertaken. Obviously, that is sometimes difficult. A cell phone number, for instance, remains the same whether the phone is physically overseas or in the U.S., and the fact that someone has a U.S. cell phone number does not necessarily indicate whether the owner or user of that cell phone is a foreigner or an American. Hence, targeting must be tied to the geolocation of a phone and some knowledge about the owner/user, rather than solely to the phone’s number. Ultimately, it is the targeting procedures, not the targets themselves, that must be approved by the U.S. Foreign Intelligence Surveillance Court (FISC).[6]

To conduct this surveillance, the government can compel assistance from Internet service providers (ISPs) and telephone companies in acquiring foreign intelligence information—that is, information relating to a foreign espionage program or international terrorism. The government often compensates these providers for the necessary effort. According to The Washington Post, the payments range from $250 million to nearly $400 million annually.[7] Some critics of the program suspect that as a result, surveillance turns from a legal obligation to a source of income. Finally, it is important to note that not only regulated carriers, such as traditional cable and telephone companies (such as AT&T or Verizon), are required to participate, but also newer technology companies to include Google, Facebook, and Skype.

The Incidental Collection Issue

If that were all that the 702 program involved, it would likely not be particularly controversial. Few Americans have expressed grave concerns about America’s overseas intelligence collection. Significantly, the 702 program cannot be used to target any U.S. person or any person located in the U.S., whether that person is an American or a foreigner. The government is also prohibited from “reverse targeting” under 702—that is, the government cannot target a non-U.S. person outside the U.S. when the real interest is to collect the communications of a person in the U.S. or of any U.S. person, regardless of location.

But a residual issue arises because of the inevitability of inadvertent collection—the incidental collection of information about Americans as part of the authorized collection of foreign intelligence.

To see why this happens, one needs to understand two distinct aspects of the Section 702 program: one portion that goes by the name of PRISM, and another that is referred to colloquially as “upstream collection.”[8]

PRISM collection is relatively straightforward. A hypothetical can explain: The government has information about a particular e-mail address, or a particular individual, linking it or him to a foreign terrorist organization. That address (john.doe@xyz.com) or that individual’s name (John Doe) is known as a “selector”; it is a basis for sifting through vast quantities of data, and selecting what will be collected and analyzed.

The Attorney General and the DNI certify the selector as relating to a non-U.S. person who is outside the United States, and who is reasonably believed to be connected to a foreign intelligence activity. Then, the National Security Agency (NSA) sends a query about that selector to an ISP. The ISP, in turn, is required to hand over to the government any communications it might have that were sent to—or from—the identified selector. The NSA receives all data collected through PRISM, and makes portions of it available to the CIA and the FBI.

Upstream collection, by contrast, does not focus on the ISP. Instead, it focuses on the “backbone,” through which all telephone and Internet communications travel, which lies “upstream” within the telecommunications infrastructure. For example, an individual’s ISP might be a local company, while the backbone that carries its Internet traffic across the ocean to Europe is almost certainly operated by a larger provider, such as Verizon or AT&T.

There are several additional differences that distinguish upstream collection from PRISM. Most notably, upstream collection can involve “about” communications. “About” communications refer to selectors that occur within the content of the monitored communication, instead of, in the example of e-mail, in the “To” or “From” line.

So, if the government were using a name—John Doe—as a selector, under the upstream collection program, it would also collect foreign intelligence–related communications in which that name appeared in the body of the communication. Say, for example, that two al-Qaeda members are communicating via e-mail, and one says to the other: “We should recruit Doe.” That e-mail would be subject to upstream collection and would be a good example of an “about” communication. The e-mail is about Doe. Under the PRISM program, by contrast, the government would collect e-mails to and from the user name, and nothing more.

As should be evident, in some cases, these programs might result unintentionally in the collection of information about an American. If two Americans are communicating domestically in an exchange that names a foreign intelligence target (say, an e-mail that mentions an al-Qaeda operative by name), that e-mail might be incidentally collected by upstream collection. Likewise, an e-mail between two terrorist targets might be collected that incidentally includes information not only about legitimately identified U.S. persons (the recruit target John Doe), but also others. An e-mail might also mention Mary Doe—even though no evidence exists of any connection between Mary Doe and a foreign intelligence matter.

This prospect of collecting American data led Congress to include certain requirements that would reduce, though not entirely eliminate, the possibility that the data could be misused. Under the FAA, when information is collected about an American, whether incidentally as part of an authorized investigation, or inadvertently as the result of a mistake, the government is required to apply FISC-approved “minimization” procedures to determine whether such information may be retained or disseminated.

When lawyers and intelligence professionals use the word “minimization” in the context of intelligence collection, it means that any information inadvertently collected on a U.S. person is retained (if at all) only for a limited time, and that information about Americans is used and revealed and further disseminated only under narrowly defined circumstances. Minimization requirements may also mean deleting the information entirely. As with the targeting procedures, these minimization procedures are approved by the FISC—but again, the approval is for the entire system of minimization, not for each individual case.

So, for example, under these minimization rules, the NSA, CIA, and FBI are subject to certain limitations in how they are permitted to query and analyze the data they have lawfully collected. For example, they must demonstrate a reasonable likelihood that targeting a particular item in the information collected will result in the development of foreign intelligence. In other words, the rules limit when a U.S. person can be targeted for examination, and how long data about an American can be retained before it is deleted.

The Effectiveness of Section 702

With that background in mind, it is useful to turn to more practical questions about the program: Does it work? Is it being abused?

The public record suggests that the Section 702 program has indeed helped in the fight against terrorism. Classified records might provide additional support for this conclusion but they are unavailable to us.[9] The Privacy and Civil Liberties Oversight Board (PCLOB)—a bipartisan panel in the executive branch that reviews actions the executive branch takes to protect the country from terrorism, and also monitors civil liberty concerns—has reported that more than one-quarter of NSA reports on international terrorism include information that is based in whole, or in part, on data collected under the Section 702 program.

The PCLOB found that the 702 program “makes a substantial contribution to the government’s efforts to learn about the membership, goals, and activities of international terrorist organizations, and to prevent acts of terrorism from coming to fruition.”[10] Additionally, the program has “led the government to identify previously unknown individuals who are involved in international terrorism, and it has played a key role in discovering and disrupting specific terrorist plots aimed at the United States and other countries.”[11]

Although the details supporting these findings are classified, the board has also said that the program has played a role in discovering, and disrupting, specific terrorist plots aimed at the United States by enabling the government to identify previously unidentified individuals involved in international terrorism.[12] Additionally, the U.S. House of Representatives Permanent Select Committee on Intelligence (HPSCI) has posted three declassified examples from the NSA that involved the effective use of Section 702 collection in 2009: the New York City Subway Attack Plot; the Chicago Terror Investigation; and Operation Wi-Fi.

A few critics of the 702 program have disputed its actual impact in the New York City Subway Attack Plot and the Chicago Terror Investigation. TheGuardian interviewed several people who were involved in the two investigations and reviewed U.S. and British court documents.[13] Based on this incomplete record, The Guardian concluded that these investigations began with “conventional” surveillance methods—such as “old-fashioned tip-offs” of the British intelligence services—rather than from leads produced by NSA surveillance.

But the fact remains that current and former intelligence officials, members from both political parties across two Administrations, national security law experts in the private sector, and the PCLOB maintain that 702 has been and continues to be a very important intelligence tool for overseas intelligence collection.

Section 702 Criticisms v. Facts

Some of the criticisms of Section 702 are little more than philosophical objections to the concept of overseas surveillance.

Setting aside those concerns, there are other specific criticisms, each of which lacks merit. For example, there has been criticism that there is no significant publicly available data on how little, or how much, incidental collection there is about U.S. persons. Such data would be helpful to know in assessing the program. According to the PCLOB, in 2013 the NSA approved 198 U.S. person identifiers to be used as content query terms. The real issue is the frequency with which U.S. persons’ information was collected incidentally to the general foreign intelligence mission, and what is done with the information. After all, if the volume of incidental collection even remotely came close to what is collected as useful data on terrorism activities, including threats, skepticism about Section 702’s efficacy would be warranted.

Given that the targets of Section 702 collection are non-U.S. persons reasonably believed to be located overseas, it can reasonably be inferred that the predominant portion of the collected data does not contain U.S. person information. Although it would be useful to have an accurate estimate of how much incidental U.S. person information actually resides within the remaining portion of the data collected under the Section 702 program, it has proved very difficult to find any solution that would provide such an estimate. The first problem is that the collected data is often not readily identifiable as being associated with a U.S. person and would require the application of additional scarce technological and analytic resources in an effort to make those associations. The second problem is that the targets of the Section 702 collection efforts do not always communicate with persons of foreign intelligence interest. Ironically, an effort to ascertain an accurate estimate of non-pertinent U.S. person information lying dormant in the collected data is inconsistent with the purpose of Section 702, which is to identify foreign intelligence information. Such an effort to provide an estimate would result in more invasive review of U.S. person information.

FISA itself takes a more practical approach in attempting to understand the potential U.S. person privacy implications raised by Section 702 collection. It requires the head of each element of the Intelligence Community to conduct an annual review and to provide an accounting of the references to U.S. persons in intelligence reporting.[14] This outcome-based approach focuses on the U.S. person information that is actually being seen by the Intelligence Community, in order to assess whether there is any prejudicial impact on privacy rights. Also, the Office of the Director of National Intelligence (ODNI) recently released its “Statistical Transparency Report Regarding Use of National Security Authorities–Annual Statistics for Calendar Year 2015.”[15] The report estimates that 94,368 non-U.S. persons are targets of Section 702 collection. By comparison, the report estimates that the IC used 4,672 known U.S. person search terms in 23,800 queries of the lawfully collected Section 702 data. The report also notes that in 2015, the NSA disseminated 4,290 Section 702 intelligence reports that included U.S. person information. Of those reports, the U.S. person information was masked in 3,168 reports and unmasked in 1,122 reports. The remaining major criticisms of the 702 program are more systematic and definitional. One critique is that the government uses too broad a means in its first stage of collection, which is then followed by a more refined collection of data.[16] Judge Thomas F. Hogan of the FISC has described the program more accurately: “While in absolute terms, the scope of acquisition under Section 702 is substantial, the acquisitions are not conducted in a bulk or indiscriminate manner. Rather they are effected through…discrete targeting decisions for individual selectors.”[17]

Another complaint about the Section 702 program is that U.S. person data is retained—at least partially—at all. Under current rules, when the U.S. government targets someone abroad, it is not required to discard the incidentally collected communications of U.S. persons—if authorities conclude that those conversations constitute foreign intelligence.

In that event, even incidental conversations by or about U.S. persons may be retained. And the threshold for querying a U.S. person within the data collected is relatively low. To affirmatively query the data collected about a U.S. person, all that is needed is a determination that the search is reasonably likely to return foreign intelligence information. “Reasonably likely” is an especially easy standard to meet. It does not, for example, require any particularized suspicion that the U.S. person who is subject of the inquiry is engaged in any wrongdoing himself.

For that reason, a Presidential Review Board, as well a few Members of Congress, believe that Section 702 collection on Americans goes too far.[18] The program, they argue, is permissible and lawful without individual case supervision or a warrant requirement precisely because it targets non-Americans. So they contend that when the communications of U.S. persons are queried, probable cause and warrant requirements should apply. Any loophole that allows that particular querying should be closed because the government should not be able to obtain “back door” evidence against U.S. persons that it could otherwise only obtain with judicial approval.

But there is no “back door” here—a query does not collect any additional data. The FISC specifically holds that the 702 collection is constitutional and entirely consistent with the Fourth Amendment’s protections. The court found that “the querying provisions of the FBI Minimization Procedures strike a reasonable balance between the privacy interests of U.S. persons and persons in the United States, on the one hand, and the government’s national security interests, on the other.”[19] Even the fact that the “FBI’s use of those provisions to conduct queries designed to return evidence of crimes unrelated to foreign intelligence” did “not preclude the Court from concluding that taken together, the targeting and minimization procedures submitted with the 2015 Certifications are consistent with the requirements of the Fourth Amendment.”[20]

Obviously, Congress itself did not agree with these systematic and definitional complaints. While the focus of Section 702 collection is on non-U.S. persons located overseas, one of the specifically intended benefits of Section 702 was its ability to provide tip and lead information about persons in the United States who might be conspiring with overseas terrorists. This limited information might prove useful in helping to establish the probable cause necessary to obtain full surveillance coverage of these domestic suspects. It is also important to understand that the response to complaints about the theoretical possibility of abuse under FISA revolves around tight controls. The PCLOB found little evidence of abuse of the Section 215 metadata program, and in the case of Section 702 implementation found virtually no intentional misuse of the collection authorities where U.S. persons were concerned:

Over the years, a series of compliance issues were brought to the attention of the FISA court by the government. However, none of these compliance issues involved significant intentional misuse of the system. Nor has the Board seen any evidence of bad faith or misconduct on the part of any government officials or agents involved with the program. Rather, the compliance issues were recognized by the [FISA] court—and are recognized by the Board—as a product of the program’s technological complexity and vast scope, illustrating the risks inherent in such a program.[21]

Similarly, the PCLOB included a section in its 702 report called “Compliance Issues.” According to the PCLOB, the few instances of error in the administration of the 702 program were infrequent and mainly minor and administrative in nature. That is why the PCLOB found that “internal and external compliance programs have not to date identified any intentional attempts to circumvent or violate the procedures or the statutory requirements, but both unintentional incidents of noncompliance and instances where Intelligence Community personnel did not fully understand the requirements of the statute.”[22]

In other words, all of the errors in the program were accidental or due to mistakes. None was the product of intentional misconduct. Indeed, the non-compliance incident rate has been substantially below 1 percent, according to the PCLOB.[23] Over half of the reported incidents involved instances in which the “NSA otherwise complied with the targeting and minimization procedures in tasking and de-tasking a selector, but failed to make a report to the NSD and ODNI” in a timely fashion.[24]

Two other common reasons why compliance errors occurred are that: (1) the wrong selector was tasked due to a typographical error, or (2) a delay in de-tasking (removing the selector) resulted when an analyst de-tasked some, but not all, of the Section 702-tasked selectors placed on a non-U.S. person target known to be traveling to the United States.[25]

Taken together, these minor administrative errors accounted for “almost 75% of the compliance incidents,” according to the PCLOB.[26]

Section 702: Constitutional and Lawful

One last aspect of Section 702 needs to be addressed: the suggestion that the program might in some way be unconstitutional or unlawful. This Backgrounder concludes that relevant case law firmly supports the constitutionality and legality of the Section 702 program. To support this conclusion, we provide a brief history of relevant case law.

The predicate case is United States v. United States District Court,[27] sometimes known as the Keith case, after Judge Damon Keith, the federal district court judge who oversaw the case.

The case hearkens back to an era of protest and civil unrest in the United States. It involved several leaders of the so-called White Panther Party—a white supremacist group—who were charged with bombing a CIA office in Ann Arbor, Michigan, in 1968. Their phones were wiretapped by order of U.S. Attorney General John Mitchell, who served under President Richard Nixon. Mitchell said that no warrant was required to authorize the interception, because the defendants posed a “clear and present danger to the structure or existence of the government.”

Judge Keith responded that the Attorney General’s rationale was insufficient, and ruled that warrantless interception and surveillance of domestic conversations was unconstitutional. When the case reached the Supreme Court, the justices agreed with Judge Keith, establishing as precedent the idea that a warrant was needed before electronic surveillance commenced, even if the domestic surveillance was related to national security.

As Justice Lewis Powell said in writing for the Court, the “price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power.” Justice Powell continued, “Nor must the fear of un-authorized official eavesdropping deter vigorous citizen dissent and discussion of government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”

Notably, however, the Court limited its holding to domestic surveillance, and said that different rules might apply when the surveillance occurred outside the United States, or was directed at a foreign power—or at non-Americans. Regarding surveillance of non-Americans overseas, courts around the country have agreed with the implicit suggestion of the Supreme Court, holding that surveillance for foreign intelligence purposes need only be reasonable (and that a warrant is not required).[28] That distinction—between domestic and foreign surveillance—is preserved in FISA, which allows more relaxed FISA procedures (for which a criminal warrant was not required) only when the purpose of the investigation is to collect foreign intelligence.

In Vernonia School District 47J v. Acton, the Supreme Court upheld the drug testing of high school athletes and explained that the exception to the warrant requirement applied “when special needs, beyond the normal need for law enforcement, make the warrant and probable cause requirements impracticable.”[29] Although Vernonia was not a foreign intelligence case—far from it—the principles from the Court’s “special needs” cases influenced later cases in the national security context.

In “In re: Sealed Case,” the United States Foreign Intelligence Surveillance Court of Review held that FISA did not require the government to demonstrate to the FISA court that its primary purpose in conducting electronic surveillance was not criminal prosecution and, significantly, the PATRIOT Act’s amendment to FISA, permitting the government to conduct surveillance of agents of foreign powers if foreign intelligence was the “significant purpose” of the surveillance, did not violate the Fourth Amendment.[30] The court avoided an express holding that a foreign intelligence exception exists, but held that FISA could survive on reasonableness grounds.

In 2008, “In re: Directives Pursuant to Section 105B of FISA” applied the principles derived from the special needs cases to conclude that the foreign intelligence surveillance authorized by the Protect America Act possesses characteristics that qualify it for a foreign intelligence exception to the warrant requirement of the Fourth Amendment.[31]

Notably, the “In re: Directives” decision cites a Fourth Circuit opinion for the proposition that there is a high degree of probability that requiring a warrant would hinder the government’s ability to collect time-sensitive information and thus impede vital national security interests.[32]

In April 2016, the first decision addressing the constitutionality of upstream collection under Section 702 was publicly released. The FISA court issued a declassified opinion[33] in which it concluded that use of information collected under Section 702 authority for domestic investigations satisfied both constitutional standards and was within the statutory bounds of the FISA Amendments Act. Notably, for purposes of this discussion, the court reached this conclusion after having had the benefit of a public advocate who articulated a position contrary to that of the government.[34] Judge Hogan cites “In re: Directives” in support of the proposition that the Fourth Amendment does not require the government to obtain a warrant to conduct surveillance in order “to obtain foreign intelligence for national security purposes [that] is directed against foreign powers or agents of foreign powers reasonably believed to be located outside of the United States.”

Section 702: Continuing Improvements

On February 5, 2016, the PCLOB issued its “Recommendations Assessment Report.” The purpose of the report was to assess whether the DNI had responded appropriately to recommendations it had made for the improvement of the program.

The DNI had taken action to the PCLOB recommendations. Indeed, with respect to the 10 recommendations relating to the Section 702 program, the PCLOB Recommendations Assessment Report determined that five recommendations have been fully implemented; one has been substantially implemented; three are in the process of being implemented; and one has been partially implemented.[35]

The historical record demonstrates the effectiveness of both the PCLOB’s oversight function and the responsiveness of the DNI to its recommendations—a win-win story in the new age of intelligence oversight.[36]

Conclusions

First, Section 702 is constitutional, statutorily authorized, and carefully constructed to address a vital U.S. national security requirement: the collection of vital information relating to foreign threats.

Second, it seems clear that, in light of careful scrutiny by the PCLOB, the specter of alleged abuse of the program is more theoretical than real.

Third, the Section 702 program has great current utility and provides invaluable intelligence of practical impact and not replaceable by other means of collection.

The benefits of the Section 702 program greatly outweigh its (theoretical) costs and the program should continue as currently authorized. Indeed, the record suggests that the 702 Program is invaluable as a foreign intelligence collection tool. The fruits of the program constitute more than 25 percent of the NSA’s reports concerning international terrorism. It has clearly defined implementation rules and robust oversight by all three branches of government, and is a necessary tool for defending the nation.

Congress should reauthorize 702 in its entirety. There is no need for a further sunset of the act’s provisions, as it has demonstrated its usefulness; and an arbitrarily forced reconsideration by Congress is unnecessary, a waste of time and money, and at the expense of national security.

The program can, and should, be implemented in a manner that is consistent with American values. To quote General Michael Hayden, former director of the NSA and former CIA director:

[A]n American strategy for cyberspace must reflect and serve our ideals. In our zeal to secure the internet, we must be careful not to destroy that which we are trying to preserve, an open, accessible, ubiquitous, egalitarian, and free World Wide Web. There are nations—like Iran, China, Russia and others—who view precisely those attributes as the very definition of cyber security threats. Their concern is not digital theft, but the free movement of ideas. We must take care that in our efforts to prevent the former, we do not legitimize their efforts to prevent the latter.[37]

A properly configured Section 702 program has met that challenge to the benefit of the American public. At a time when international terrorism is on the rise, the United States must have a lawful, robust foreign intelligence capability.

—David R. Shedd is a Visiting Distinguished Fellow in the Kathryn and Shelby Cullom Davis Institute for National Security and Foreign Policy, Paul Rosenzweig is a Visiting Fellow in the Douglas and Sarah Allison Center for Foreign Policy, of the Davis Institute, and Charles D. Stimson is Manager of the National Security Law Program and Senior Legal Fellow in the Center for National Defense, of the Davis Institute, at The Heritage Foundation.

JUNE 06, 2017 5:27 PM

Republicans worried about leaks consider cutting back surveillance authority